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Fort Worth Family Law Blog

Community property and divorce in Texas

When two people choose to get a divorce in Texas, they must figure out how they will divide their assets. This can be particularly difficult, especially if both parties brought property into a marriage or obtained a large amount of property or financial assets.

There are two types of property: separate and community property. Separate property is property that is brought into a marriage by one person. Unless that property is commingled during the marriage, it will belong to the same person should the couple divorce. Community property is considered to be any property that was acquired during the marriage. This property is subject to being divided should the couple get divorced.

Divorce and personal injury settlements

In some cases, Texas couples decide that it is time to divorce even if they are waiting on an award from a personal injury or medical malpractice settlement. While it may seem like the award should be split evenly, this is not always the case. In general, the division can depend on who is entitled to receive the award and may be determined by a number of different factors unique to each case.

When an award is received, it must be determined what money can be considered separate or marital property. Some courts consider any compensation awarded to one spouse to be considered separate property. Others consider all compensation awarded during a marriage to be marital property. Still, others determine who sustained what damage and if those damages were shared. These judges often consider shared damages as marital property and damages sustained by only one of the spouses to be separate property.

Marriages, partnerships and finances

As Texas residents may know, traditional marriages are fully protected legally and financially by state and federal laws. After the Supreme Court ruled the Defense of Marriage Act unconstitutional, many same-sex couples now are guaranteed the same protection. Married couples are given legal and financial benefits by more than 1,000 laws, but few states recognize or provide benefits to domestic partnerships and civil unions of unmarried couples. In some cases, registered domestic partnerships and civil unions are protected in some states for such things as health insurance and unemployment, but not on the federal level. However, even when states recognize unmarried partnerships and unions, the couples do not have federal protections.

Although domestic partnerships and civil unions are not marriages, all states that offer them also allow same-sex marriages. Married couples, regardless of gender, are allowed federal benefits, but unmarried couples are not. Some states extend benefits to domestic partners and civil unions, but those benefits vary from state to state. A couple's marital status affects income taxes, social security, retirement accounts, health care, property and debt, so couples considering legal unions may need to choose carefully between marriage and partnerships.

Making divorce easier for Texas divorcees

While stories of billionaire oil tycoon Harold Hamm's $975-million check may come to mind in recent divorce settlements, not every divorce will be this extreme. The average Texas couple doesn't have millions in the waiting, of course, but every dollar counts. With the right amount of preparation, couples can spend their money much wiser during divorce disputes.

For every 1,000 Texan couples who get married, 11 will be getting a divorce by year's end. Individuals facing divorce can better utilize their funds by knowing when to speak to professional legal counsel versus when it might be a better idea to air out private matters with loved ones.

Noncustodial parents may be granted virtual visitation

Parents in Texas who are seeking visitation rights might be concerned that they will not be allowed to stay in contact with their child as much as they would like. A parent in this situation may want to request that virtual visitation be included in the visitation order. As the name implies, virtual visitation is a type of arrangement where technology, like video conferencing, email and instant messaging is used to facilitate communication between a child and a noncustodial parent.

A parent who has been awarded virtual visitation may be able to stay in closer contact with a child who has moved to another state with their custodial parent. The noncustodial parent could potentially read their child a bedtime story or view a sports event live through video conferencing technology. The child may also have the ability to speak with their parent face-to-face after losing a tooth, winning an award or going through another major life event.

Getting a divorce in Texas when uncontested

A divorce usually entails determining a plan for any children a couple might have and dividing property and debts. An individual can get a divorce in Texas if they or their spouse have lived in the state for six months or longer. However, a couple usually cannot finalize a divorce while a wife is pregnant so that information about the baby can be put in a divorce decree. This applies even if the other spouse is not the father of the child.

To receive a divorce, one must download and fill out the proper forms, file and make copies of the divorce petition, give a spouse notice and wait for a response. A divorce is contested if a spouse does not agree to the terms one sent, and a divorce is uncontested if a spouse agrees to sign a divorce decree and waivers or does not answer during the appropriate period.

Grandparents' rights and child custody in Texas

Sometimes, situations will occur in families that make grandparents feel they should try to get custody of a grandchild. Texas does recognize grandparent rights, but in order for a grandparent to receive custody of a child, certain factors must first apply, and the requested custody must be in the best interests of the child.

If a grandparent wants to file an original custody motion, one of several circumstances must first exist. In certain cases, the child must have lived with the grandparent for six or more months. If the child has moved, the motion must be filed within 90 days. Original petitions are also allowed if the grandparent has been named as the child's guardian by the court or if the surviving parent or both of the parents agrees that the child may live with the grandparent. Finally, if the grandparent is able to prove that the child's current living situation endangers the child's health, safety or welfare, courts may grant custody.

Gay marriage ruling may impact Texas family law

Judges from the U.S. Court of Appeals for the 5th Circuit heard arguments on Jan. 9 related to gay marriage bans in Texas, Louisiana and Mississippi. After the arguments, two of the judges expressed doubt about the legality of the bans. One of the judges questioned why sterile heterosexual couples would be allowed to marry but not same sex couples if states wanted to use marriage to encourage procreation.

While many federal courts have moved to overturn bans on gay marriage, the U.S. Court of Appeals for the 6th Circuit had upheld bans in four states in November 2014. This split in opinion is assumed to be the impetus for a formal U.S. Supreme Court ruling on the legality of gay marriage bans. A gay marriage ban was overturned by a Texas district court, but the ruling was put on hold as higher courts debated the matter.

Visitation rights in Texas

When divorcing parents are able to communicate and work together, a judge may order reasonable visitation rights to the non-custodial parent. What this means is that the judge is asking the parents to come up with a visitation plan on their own. While the custodial parent may have more leverage in this situation, it does not mean that he or she can be inflexible toward the other parent.

If a parent is inflexible toward the other parent, it may be harder to get concessions from a judge in the future. It may also not be in the best interest of the child. However, a custodial parent is not bound to accept any visitation plan proposed by the other parent. In the event that a reasonable visitation plan doesn't work out, it may be possible to go back to court to ask for a fixed visitation schedule.

What information can be accessed before an adoption?

Texas residents who are interested in adopting a child may benefit from learning more about the preparation required for successfully completing the process. Unless the adoptive parent is a stepparent, grandparent or uncle or aunt through prior adoption, marriage or birth, there must be a report detailing the child's genetic, education, social and health history. The responsibility of compiling the report lies with the state's Department of Protective and Regulatory Services, the licensed agency placing the child for adoption or the child's guardian.

The history report must be filed before the child is placed for adoption. The report should contain any information about emotional, physical or sexual abuse the child may have experienced in the past. The entity putting the child up for adoption is required to issue the report to prospective parents within a reasonable amount of time before the adoptive parents are to meet with the child.

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1201 East Belknap Street
Trinity Plantation Building
Fort Worth, TX 76102
Phone: 817-984-4610
Toll Free: 877-713-7202
Fax: 817-334-0394
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