Dallas Divorce Myths and Bullet Points
By Earl N Jackson
Board Certified
Texas Board of Legal Specialization

"Too many Dallas Divorce Lawyers have forgotten that they serve the client and not the other way around." - A Dallas Divorce Attorney.

It seems that everyone has an opinion as to "what the law is" or wants to be an "armchair lawyer." Sometimes, a client needs to understand that the law may not be what "they have heard." The following bullet list addresses some of these issues:

• Child Custody and Support

• Alimony

• No Divestment of Separate Property

• Unequal Division of Marital Property is Possible

• Common Law Marriage - Not by living together, Not by having a child.

Child Custody and Support

Joint Managing Conservators: The Court will appoint both parents as "Joint Managing Conservators." It is a legal presumption that the JMC relationship is in the best interest of the children. Absent a circumstance that either removes the presumption, family violence, or overcomes the presumption, the Court will appoint the parents JMCs. See Texas Family Code §153.131(a).

Standard Possession Order: As to visitation, the Court usually implements the Texas Standard Possession Order. The Standard Possession Order is a codified order that sets forth those periods in which one parent will have a right to possession and access to a child. All Standard Possession Orders call for agreement between the parties and in the absent of agreement the Standard Possession Order applies.

Child Support Guidelines: The Texas Family Codes provides for "Child Support Guidelines" in order to determine child support. In most circumstances, the Court will follow the guidelines. The table below, sets forth the basic parameters of child support. Recognize that this is a simplified version of the actual tables used and does not take into consideration all factors:

Texas Alimony

Texas does not favor alimony or, more correctly called, post divorce maintenance.  Far too often, we find that a spouse may have "an expectation" that he or she will receive alimony.  This is not California, Florida or Vermont.  Post divorce maintenance is highly disfavored.  That does not mean, however, that it is never awarded.

Permanent Alimony. The Courts cannot award permanent alimony.

Temporary support: The Court can order one spouse to pay the other "temporary alimony" for support during the pendency of the litigation. This is commonly referred to as "spousal Support." Spousal Support is usually awarded to one party due to some extraordinary financial need. For example, a recent case involved a wife who was working as a receptionist in order to fill her time and for spending money (she was approaching her senior years, the kids were grown and gone). Husband had a very good income (over six figures). They lived in a $300,000 home. Spousal support was awarded during the pendency of the case in order to allow her to continue to make the utilities and mortgage payments. 

Contractual Alimony: The parties can agree for, as part of the division of the marital estate, post divorce contractual alimony. Contractual alimony can be structured so that payments are deductible in calculating the obligor's taxable income. See 26 United States Code §71.  Contractual alimony may voluntarily be agreed to by a party to provide some measure of support to a spouse following the divorce action and is commonly used to "purchase" or "buy out" that spouse's interest in a marital asset - a business for example.

Statutory Alimony: The Court can order support payments for one spouse after the divorce is final only if that spouse shows entitlement to "espousal maintenance." To qualify for espousal maintenance, the spouse will have to show (1) marriage of 10 years or more, (2) the spouse lacks the skills and experience for gainful employment, (3) lacks the means for self support. Maintenance payments must cease no later than three years after the divorce. The typical fact scenario for espousal maintenance involves an elderly housewife who has spent most of her married life in the home. She is without the requisite job skills to support herself. 

Texas Property

No Divestment of Separate Property: Separate property is property owned by a spouse before marriage, property acquired by gift, property acquired by devise, property acquired by descent and an award for damages due to personal injury.  You have to "prove" that it is your separate property as all property is presumed to be community property.

The court cannot divide or divest one spouse of title to his or her separate property. Eggemeyer v. Eggemeyer 544 S.W.2d 137 (Tex. 1977); Cameron v. Cameron, 41 S.W. 210 (Tex. 1982).

Unequal Division of Marital Property Possible:

 The only hard and fast rule for the division of marital property is a "just and right division." An ambiguous term at best. In most cases, the Court will divide the property along the lines of 50/50 absent some circumstance which indicates otherwise. Circumstances calling for an unequal division include disparity of earning power, espousal or child abuse, and/or size of the separate property estate.

Texas "Common Law Marriage"

Common Law Marriage - Not by living together, Not by having a child. It does not matter how long you have lived with your boyfriend or girlfriend - time passage is not an element.

"I have lived with my significant other for 10 years, do we have to get a divorce?" A common law marriage, in Texas, is formed by one of two methods:

First, if the parties have signed a "Declaration of Marriage" pursuant to Section 2.402 of the Texas Family Code then the parties are married. 

Or §2.401(a)(2) Texas Family Code, if 

• a man and woman have agreed to be married;
• after agreement to be married they lived together as husband and wife in this state; and 

• if they have held themselves out to the public as married then the parties are married.

The second test above is the most common cause for concern between parties. Answer, just because you lived with a significant other for a period of years, does not make you married. You have to have fulfilled all three requirements above in order to be married. "But we had a child together." It does not matter - a child is about paternity in this case it is not about being married. Having a child is not one of the elements of common law marriages.

If a Court proceeding in which a marriage is to be proved by §2.401(a)(2) of the Texas Family Code is not commenced by the second anniversary of the date on which the parties separated and ceased to live together, it is a rebuttable presumption that the parties did not enter into an agreement to be married.  In other words there is a statute of limitations for a divorce proceeding as to common law marriages, albeit, an informal and not absolute statute.

A person under 18 may not be a party to a common law marriage or execute a declaration of informal marriage.

The Jackson Law Firm, P.C.
Dallas Divorce Lawyers
214-369-7100

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