Wichita Falls, Texas | Family Law
The practice of family law in Texas involves a multitude of different issues. Texas law requires divorcing couples to divide their community estate and address the needs of their children in the final decree of divorce. The division of the community estate often involves a determination of which property can be divided by the divorce court. A Texas court cannot divest a spouse of his or her separate property, but the evidentiary burden of establishing property as separate rests with the party who asserts the claim. Provisions for a child of the marriage include the allocation of parental, rights, duties and responsibilities, including the determination of the primary residence of the child generally referred to as conservatorship, determination of the amount of child support to be paid and by whom, and access and possession to the children by the person with whom the child will not primarily reside. If both parties and the child do not reside in Texas, then issues may arise which are governed by certain interstate laws known as the Uniform Child Custody Jurisdiction and Enforcement Act, which pertains to issues of child custody and visitation, and the Uniform Interstate Family Support Act which pertains to issues involving monetary support both as they relate to the child and to the spouse. The determination of the application of these laws to a specific case must be made at the outset of the case as certain due order pleadings are required for filing.
Characterization of property in a divorce case can be a complex and confusing process. A Texas court can only divide the community estate of the parties. The determination of whether property is community or separate is referred to as the characterization process. Not only must property be clearly identified as separate or community, but it may also require a professional determination as to its value. If the separate estate of one of the divorcing spouses has paid expenses or debt of the community estate, the separate estate may be entitled to reimbursement or the community estate may be entitled to reimbursement from the community estate for monies expended by the community which benefit only the separate estate of one of the spouses. Valuation of community and separate property assets may be required and may require the employment of expert witnesses trained in the art of valuation.
Forms are now available for divorcing spouses both from the internet and other sources. These forms often present more problems for the litigant than they solve as many forms are prepared in other jurisdictions whose laws substantially differ from those in Texas or which are prepared by persons who lack knowledge of Texas divorce practice and the issues presented by it.
Additionally, there are post-divorce issues which may arise including the modification of conservatorship, including a determination of the primary residence of the child, child support and/or possession of or access to the child. Enforcement of existing orders for the payment of child support or possession of or access to the child may be an issue and the form of enforcement often hinges on the wording of the underlying order. Enforcement may be by contempt of court, which could result in the incarceration of the offender, a fine for the offender, in certain cases, the addition of time for one who has lost court-ordered visitation with a child or through a mechanism known as Habeas Corpus which pertains to the right of a person to have possession of a child and the refusal of the other person to return the child to the person who has the court-ordered right to establish the child’s primary residence. Enforcement may also involve a judgment for money and/or attorney’s fees and in some cases enforcement may involve both contempt and a judgment. The Office of the Attorney General of the State of Texas may initiate an action seeking to modify or enforce a child support order. The Attorney General does not represent either parent but only the interests of the State of Texas. Both parents are encouraged to have private legal representation. Property which was not divided in the divorce or property which was divided, but whose division is prevented by virtue of the wording of the decree or a another court order such as a Qualified Domestic Relations Order or Domestic Relations Order may also be the subject of a post-divorce action.
Still other areas of family law practice involve adoptions including both step-parent and non-parent adoptions and instruments which are designed to alter the legal character (community or separate) of both real and personal property. Pre-marital agreements or agreements between persons about to marry are often utilized by spouses to effect an alteration of their property ownership after they are married. Post-marital partition and exchange agreements may be entered into between spouses to exchange community property and convert it and its income into separate property. Both types of documents require a skilled practitioner.
Richard T. Sutherland has extensive experience in each of the areas mentioned above.
