Galmor, Stovall & Gilthorpe

Attorneys & Counselors at Law

409-832-7757

Know your rights.

Call us today for a free consultation.

Serving the legal needs of Southeast Texas since 2008

Home

Attorneys

Family Law

Criminal Law

Personal Injury

Immigration

Estate Planning

Business Law

Q & A's

Links

Disclaimer

Contact Info

FACEBOOK!

 

 

Divorce

 

Divorce is the process by which a husband and wife legally dissolve their marriage. Most of the time when a husband and/or wife file for divorce, the suit is based on insupportability of the marriage, also known as No Fault divorce. Of course, either spouse may allege other grounds for divorce such as adultery, cruelty, abandonment, among other things.

 

A divorce is one of the most difficult events in any person’s life. The prospects of divorce, working with a lawyer and the actual divorce proceedings seem like daunting tasks with potentially austere financial ramifications. The fact is that many marriages end in divorce. People are choosing to live their separate lives and chase their dreams as opposed to be unhappy in a marriage. The important thing is to get through this process and continue to build your life. We have prepared some FAQs below to help you better understand the divorce process and how it works.

 

Residency Requirements
Before filing for divorce, at least one of the parties must be a Texas domiciliary (i.e. resident) for at least six (6) months and a resident of the county where he or she files for divorce for at least the preceding 90 days.
 

Procedures to initiate divorce
Generally, one spouse hires a lawyer and files a petition for dissolution of marriage, motion for temporary orders, and a notice of hearing. This spouse is referred to as the Petitioner.  The other spouse, Respondent, is served by a constable or process server with citation, copies of the petition, motion for temporary orders, and the notice of hearing. The Respondent may hire an attorney to file an answer to the petition and motion for temporary orders.
 

Temporary Orders
A divorce will not be granted until at least 60 days have elapsed since the petition was filed. Temporary hearings are held before a state district judge or the court’s associate judge. At temporary orders, the court decides issues such as which spouse will retain exclusive possession and use of the marital residence while the divorce suit is pending, how property such as vehicles and vacation homes are to be used during this time, and often, when children are involved, where the children will reside during the divorce action. Therefore, it is very important to retain a divorce lawyer as soon as possible after being served with divorce papers to make sure your interests are represented at the temporary orders hearing.

 

Uncontested Divorce
Sometimes parties will agree to a divorce and independently work out issues of property division. In that case, the petitioning party may have the other party execute a waiver of citation. Because of the waiver, the non-filing spouse will not receive service of process of the divorce petition. Additionally, the non-filing spouse does not file an answer to the original petition. The parties generally wait for 60 days from the date of filing, go to court and prove up their divorce. This is a relatively simple process with little court intervention.
 

Contested Divorce
A contested divorce is one in which the partners can not work out a divorce petition independently.  For example, a highly publicized "knock down, drag out" divorce  would fall info this category.  Each divorce party would hire and be represented by their own divorce lawyer.  The parties and divorce lawyers would work together to create a petition that both parties can agree on.  The earliest a divorce can be granted is 60 days after the petition is filed, but could take much longer depending on how long it takes to reach an agreement.  There is no maximum number of days in which a petition bust be finalized. Therefore, it is feasible that a divorce proceeding could last anywhere from 60 days up to several years.
 

Collaborative Law
Collaborative Law is a process that provides an alternative to the traditional divorce litigation.  Statutes enacted in 2001 authorize parties to use collaborative law procedures, under which the parties and their attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dispute without judicial intervention except to have the court approve the parties’ settlement agreement and sign the orders required to give legal effect to the agreement.  In collaborative law, the husband, wife and both their attorneys work together, in private, to find a way to meet each individual’s needs so that the couple may make a smoother transition from being married to being single.  For more information, visit the Collaborative Law Institute of Texas at
www.collablawtexas.com
.  An advantage of a collaborative law divorce is that there is no public record made of the divorce agreement.  Therefore, a reporter or investigator could not go to the courthouse and get a copy of the divorce decree.
 

Divorce and Children

A child means an unmarried and unemancipated person under eighteen years of age.  Child or minor means a person under 18 years of age who is not and has not been married or had his/her disability of minority removed. 
 

Child Custody

Child custody can be the single most difficult issue in the divorce process.  Assets are split in the petition as a one time agreement, but the impact of custody arrangements continues after the divorce is finalized in accordance to the details of the petition.  It is a common tactic in divorce proceedings to point out the other party as an unfit parent.  The purpose of this approach is to win custody of the children, limit visitation rights of the other party, protect the children from harm, or to make one's claim that they are the better party for which the court should assign custody.  You must prepare yourself that you could be portrayed this way in the divorce proceedings.  It is often said that all the "dirty laundry" comes out during divorce.  Understand that this is a fight in which you must represent your best interests as well as the best interests of your children.

 

Custody of a child is determined by a legal proceeding called a SAPCR – or “Suit Affecting the Parent-Child Relationship.”

 

Sole Managing Conservatorship refers to the custodial parent who has actual possession of the child at all times, except during the time the other parent has visitation rights.

 

Possessory Conservatorship refers to the non-custodial parent with visitation rights.

 

Joint Managing Conservatorship means the sharing of rights, privileges, duties, and powers of a parent by two parties, usually the child’s mother and father, even if the exclusive power to make certain decisions (such as the child’s primary residence) may be given to one party.  Unless there is a history of family violence, there is a rebuttable presumption that appointment of the parents as joint managing conservators is in the child’s best interests. 
 

Rights and Duties of Parenthood:

Right to custody

Duty of care, upbringing and discipline

Duty of support

Managing the child’s estate

Right to consent to marriage, military service, and medical treatment

Right to represent child in legal actions

Right to child’s services and earnings

Right to receive and disburse funds for child’s support and benefit
 

Child Support

Each parent has the legal duty to support the child, including providing the child with clothing, food, shelter, medical care and education.  This obligation continues until the child turns 18, graduates from high school, or is otherwise emancipated.  In some instances where a child is disabled or has special needs, support obligations may continue indefinitely.  In recent years, the State of Texas has acquired more efficient and stringent methods for enforcing child support orders.  The parent who must pay support could have his/her wages garnished, income tax refunds diverted, lottery winnings intercepted, or even committed to jail for up to 6 months for failure to make child support payments.  A parent who is in arrears for back-child support accrues interest at a rate of 6% per year on the unpaid balance. 

 

Child support is based on statutory guidelines.  The guidelines suggest that the amount of child support is based on a fixed percentage of the obligor’s net resources.  This percentage is applied to the obligor’s first $8,550 of net resources each month.

 

1 Child – 20% of obligor’s net resources

2 Children – 25% of obligor’s net resources

3 Children – 30 % of obligor’s net resources

4 Children – 35% of obligor’s net resources

5 Children – 40% of obligor’s net resources

Over 5 Children – Not less than the amount for 5 children
 

How does the court determine net resources?

First, the court must first calculate all resources the obligor has.  This includes: 

  • 100% wage and salary income and compensation, including commission, overtime, tips, and/or bonuses

  • Income from interest, dividends, and royalties

  • Self-employment income

  • Net rental income (after deducting operating expenses)

  • All other income actually received – for example,

    • severance pay,

    • retirement benefits,

    • pensions,

    • trust income,

    • annuities,

    • capital gains,

    • social security benefits,

    • unemployment benefits,

    • workers compensation benefits,

    • interest income,

    • gifts and prizes,

    • spousal maintenance, and alimony

 Next, the court deducts the following items to determine net income:

 

  • Social Security taxes

  • Federal income taxes based on the tax rate for a single person claiming one personal exemption and the standard deduction;

  • State income tax

  • Union dues

  • Health insurance coverage for the obligor’s child

 

Gross income less the above-referenced deductions, yields an obligor’s net resources.   

 

Division of Community Property a 50/50 split?
Not Necessarily.  The starting point of a property division between the spouses, but very rarely the ending point, is that community property is divided equally between the spouses. However, the equal division of community property rule is subject to the court statutory right to make a just and right division of the community estate, having due regard for both parties and any children of the marriage. Factors the court may consider in making a just and right division of the community estate include:

 

  • Each spouse’s level of education

  • Employment potential

  • Fault in the breakup of marriage

  • Spouse’s medical condition

  • Expected inheritance of a spouse

 

How can I keep the costs of a divorce down?
The best way to keep costs down is to have a relationship with your spouse where you can speak and try to reach agreement on important issues like child custody, child support and division of marital property. It is in both parties interest to agree as much as possible without the use of lawyers. It is important to communicate this message early in the divorce process to your spouse. The spouse likely does not want to spend a lot of money on legal fees as well if it can be avoided.

 

You need to be realistic in the agreement expectations. Both parties need to feel that there was a fair split in the divorce agreement. A negotiation can be a difficult experience leaving you feeling that you got your way in some areas, and in other areas you had to give a little. You must prepare yourself for these feelings and realize that it is perfectly natural in the negotiation process and there may not be any anger behind it from the spouse. The further that things get one sided, the more likely that communication and agreement can break down.

 

Call us today at  for a free initial divorce consultation to see if we can meet your divorce attorney needs.

Subject

Your Name

Your Email

Comments/

Phone Number

Galmor Stovall, PLLC

d/b/a Galmor, Stovall & Gilthorpe

485 Milam Street

Beaumont, Texas 77701

Phone / (409) 832-7757

Fax / (888) 667-5982

info@galmorstovall.com