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Houston Divorce & Family Law Attorney Richard J. Tholstrup

The Tholstrup Law Firm, L.P.

440 Louisiana, Suite 800
Houston, Texas 77002
    2002 Timberloch, Suite 200
The Woodlands, Texas 77380
Phone: 713.225.1280 Fax: 713.225.1344
E-Mail:  tholstru@sbcglobal.net
Home Page:  www.tholstruplaw.com

Family Law Attorney Richard J. Tholstrup

LITIGATED DIVORCE IN TEXAS

For more detail on the following, simply click on the issue

1. Relevant Texas Family Code Sections & Leading Case Law
   A. Texas Family Code
   B. Significant Texas Family Law Cases


I. 	Torts/Fraud

II. 	Jurisdiction

III. 	Goodwill

IV. 	Retirement

V. 	Property/Characterization/Reimbursement

VI. 	Trusts

VII. 	Partnerships

VIII. 	Grandparents/Third Party Rights

IX. 	Domicile Restriction

X. 	Mental health professionals

XI. 	Premarital agreements

XII. 	Miscellaneous cases

2. Is Texas the proper state to file the divorce?
3. Are there different types of divorces?
4. What type of divorce is right for me?
5. What will be required of a client in a divorce case?
6. How much does a divorce cost?
7. How long does it take to get a divorce?
8. What happens if the parties to a divorce have children together?
9. How does the court determine who gets custody of the children?
10. How much child support can I receive/will I pay?
11. How do you calculate child support?
12. What is included in net resources?
13. Can a person ever get more than the maximum amount for child support?
14. Which parent has to pay for the child’s medical support and health care costs?
15. When can a person receive alimony?
16. How much alimony may a person receive?
17. How does a court determine whether a person is entitled to receive alimony?
18. How is property divided in a divorce?
19. If a spouse gives a gift to a person, can the other spouse recover the value of that property upon divorce?
20. Can I sue my spouse for assault while also filing for divorce?
21. Am I entitled to my spouse’s retirement benefits?
22. How are retirement benefits divided upon divorce?
23. What is the tax liability upon divorce?

1. Relevant Texas Family Code Sections & Leading Case Law

Texas Family Code

To access the Index of the Texas Family Code to read the statutes directly (provided by the State of Texas, so beware there may be delay in updates from legislative changes, go to www.capitol.state.tx.us/statutes/fatoc.html, find the relevant section, and click on the statute to go to that section.

Significant Texas Family Law Cases

I. Torts/Fraud

Bounds, 560 SW2d 925; Father shot mother/plead nolo/convicted of negligent homicide; Interspousal immunity for willful and intentional torts abolished prospectively; children are not barred from asserting claim for damages against their father for wrongful death of their mother; Law will impose constructive trust upon property of deceased which passed either by inheritance or by will if beneficiary willfully caused death of deceased.

Brinkman, 966 SW2d 780; Civil assault; Divorce serves as res judicata (or claims preclusion) barring post-divorce tort lawsuit where it is a related matter that, with the use of diligence should have been litigated in the prior suit; Here, the assault issue was known/used (to her advantage) in the divorce action regarding fault, injunction, Community Property, and spousal support; if joinder caused undue complication, the remedy is severance.

DeVine, 869 SW2d 415; Fraud on community/sleeping with developer case; As between spouses, six traditional elements of actual fraud need not be shown; Presumption of constructive fraud arises where one spouse disposes of the other spouse’s interest in community property without other’s knowledge or consent; Evidence should show fair compensation for community estate; Taking fault into account and awarding wife only 40 percent of community estate and awarding $500,000 in misappropriated assets to wife as part of her 40 percent of community estate did not impermissibly punish wife and did not effectuate grossly disproportionate division.

Osuna, 993 S.W.2d 201; Fraud on community/mistress case; Have to have evidence that money came from wrongful spouse regarding deposit by mistress; Cause of action for fraudulent transfer is based on the fiduciary relationship that exists between spouses as to the Community Property controlled by each spouse; Breach of legal or equitable duty is termed fraud on the community, a judicially created concept based on the theory of constructive fraud; A third person who knowingly participates in the breach may also be liable for the fraud; The aggrieved spouse has a right of recourse first against the property or estate of the disposing spouse, and, if that proves to be of no avail, then the aggrieved spouse may pursue the proceeds to the extent of her community interest in the hands of the party to whom the proceeds have been conveyed; A spouse may make moderate gifts for just cause outside the community, but a gift of Community Property that is capricious, excessive or arbitrary may be set aside as a constructive fraud on the other spouse; A purchase money resulting trust is implied in law when someone, other than the person in whose name title is taken, pays the purchase price of the property; A marriage is void if entered into when either party has an existing marriage; Putative spouse is okay if acted in good faith; Any putative marriage terminates when innocent spouse learns of undissolved marriage of other spouse.

Schlueter 975 S.W.2d 584; Fraud on the community/reimbursement; Because a wronged spouse has an adequate remedy for fraud on the community through the just and right property division upon divorce, the court held that there is no independent tort cause of action for damages to the community estate (different if to the wronged spouse’s Separate Property); Bounds (wrongful death), Price (negligence - motorcycle accident) & Twyman (intentional infliction of emotional distress) - all Personal Injury cases - Pain and suffering is Separate Property.

Moore, 890 S.W.2d 821; Fraud/Breach of fiduciary duty; Former wife could not receive damages on separate cause of action for fraud on the community or related mental anguish; Mental anguish damages cannot stand alone without affirmative finding that independent tort has been committed.

Twyman, 855 SW2d 619; Intentional infliction of emotional distress/bondage case; IIED elements are acted intentionally or recklessly, that conduct was extreme and outrageous, that actions caused emotional distress and that distress was severe; So extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community; Tort and divorce action should be resolved in same proceeding, and when fact finder awards tort damages to divorcing spouse, court may not consider same tortuous acts when dividing marital estate.

II. Jurisdiction

Austin v. Dawson-Austin, 968 S.W.2d 319; Interstate jurisdiction issues/hearing aide case; In personam jurisdiction over wife jurisdiction to divide the marital estate; Never resided in Tex, and neither came to Tex except on business a few times; “Subject to” Special Appearance; may cure Special Appearance before general appearance/invoke the judgment of the court; Minimum, purposeful contacts/exercise will not offend traditional notions of fair play ad substantial justice; One spouse cannot, solely by actions in which other spouse not involved, create the contacts between a state and the other spouse necessary for jurisdiction over a divorce action/can decide custody, but not support or visitation; can render divorce/no other claims.

Allen, 593 S.W.2d 133; Floyd Co v. Lubbock Co/Dominant jurisdiction because it was first county where divorce was filed; Court having continuing jurisdiction of children’s suit must transfer case to court having jurisdiction over divorce upon proper motion; motion to transfer deprives court in Parent-Child suit of continuing jurisdiction except for jurisdiction to trans; no provision in trial court for minimum residence for Parent-Child suit.

Goodenbour, 64 S.W. 3d 69; New Zealand/Dawson-Austin case; classic commuter marriage/last marital residence was Texas; husband’s conduct and connection such that he should reasonably anticipate being haled into court there.

III. Goodwill

Nail, 486 SW2d 761; Division of personal goodwill; Accrued goodwill of husband’s medical practice did not constitute property subject to division as part of parties’ estate.

Rathmell, 732 SW2d 6; Objection to goodwill expert; Trial court valuing Community-owned insurance agencies for division upon divorce should have excluded value attributable to personal goodwill of husband–time, toil , and talent of husband to be expended following divorce; Fraudulent inducement to divorce settlement by former spouse’s false representations, coercion or failure to disclose material facts gives rise to extrinsic fraud/Bill of Review.

Smith, 836 SW2d 688; Personal/Professional goodwill; Appraisal of husband’s respiratory care business by wife’s expert should not have been admitted since it did not exclude good will and since it concerned husband’s personal future earning capacity rather than valuation of business.

IV. Retirement

Baw, 949 SW2d 764; Formulas for division of retirement benefits; Defined Contribution/Profit sharing = value at divorce - value at marriage; A party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion or misrepresentation; Objection on record gives rise to not explicitly and unmistakably giving consent; Fractional apportionment formula on rights not vested at divorce or divided in decree.

Buys, 924 S.W.2d 369; Pre/Post McCarty military retirement benefits; Congress did not intend for state courts to use Former Spouse’s Protection Act to re-open pre-McCarty cases to divide military benefits; Rules of contract law govern the construction of property settlement agreements incorporated into decree; If settlement agreement is worded so that court can give it a certain or definite legal meaning, it is not ambiguous and court construes it as a matter of law; Residuary clause of SA “treated” husband’s retirement for purposes of amendment to FSPA; Where there is a series of certain sums due on ascertainable dates, pre-judgment interest is due.

Grier, 731 SW2d 931; Military retirement; In apportioning military retirement benefits upon dissolution, valuation of community interest in such benefits is based on retirement pay which corresponds to rank actually held on date of divorce; FSPA does not limit amount of military retirement pay which may be characterized and apportioned as community asset–Act’s provisions are intended only as a limit on amount of pay which may be garnished and paid out directly to non-service spouse in court order.

Havlen v. McDougall, 22 S.W 3d 343; Military retirement; Unmentioned community property in decree re military retirement is not “treated” and thus not amenable to partition; 20 years after divorce–motion for summary judgment based on 1990 Amendment’s bar re treatment, 2 yr SOL TFC, and equitable estoppel and laches; USFSPA relates to decrees prior to June 25, 1981, and prohibits division if the original decree did not treat or reserve jurisdiction to treat any amount of retired pay; BUYS - an express residuary clause is effective to award property under Texas law even if the clause does not list a particular asset by name.

Mansell v. Mansell, 490 U.S. 581; Military disability accruing to service person during marriage is not divisible upon divorce for purposes of payment to non-military spouse under USFSPA–only disposable retired pay; The Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits; McCarty-state courts could not treat military retirement as Community property.

Taggart, 552 SW2d 422; Retirement benefits are subject to division as vested contingent community property rights even though the present right has not fully matured; community property interest in contingent rights is the fractional interest calculated by number of months married divided by total number of months employed.

V. Property/Characterization/Reimbursement

Butler v. Butler, 975 S.W.2d 765, 769; Liability of spouses for debt; Income after divorce is not property acquired during the marriage; Reimbursement for child support payments that begin during the marriage can be distinguished from child support/alimony obligations from a prior marriage that the new wife had full knowledge of; To warrant reversal of a trial court’s division of community property, an appellant must show that the division was so disproportionate as to be manifestly unfair, and that the trial court probably would have made a different division of the property if it had been properly characterized; If the judge intends to divide Community property 60/40 and the actual division because of miscalculation is 75/25, the division is manifestly unfair.

Cameron, 641 SW2d 210 (1982); Quasi Community Property; Property spouses acquired during marriage, except by gift, devise or descent, should be divided upon divorce in Texas in same manner as community property, irrespective of domicile of spouses when they acquire the property.

Eggemeyer, 582 SW2d 137; Separate/Community property-trial court gave wife separate property farm interest of husband; Texas Family Code does not authorize divestiture of one’s title to Separate property; Rents, revenues and income from Separate property may be set aside for the support of minor children; Court could have set over the father’s Separate property interest in the farm to the mother for the support of the children during their minority; The nature of property is fixed by the Texas Constitution, not by what is “just and right”; It is no breach of Constitution to decree the use of property, for some period, for the use in support of the minor children.

Heggen v. Pemelton, 836 SW2d 145; Liens against separate property; When dividing marital property upon divorce, trial courts may impose equitable liens on one spouse’s separate real property to secure other spouse’s right of reimbursement for community improvements to that property, but not to ensure a just and right division of marital estate; Equitable lien on wife’s separate property homestead could be imposed to secure husband’s right of reimbursement for improvements made with community funds provided husbands’s reimbursement claim satisfied constitutional provision providing foreclosure protection for homestead.

Jacobs, 687 SW2d 731; Reverse and remand in property cases; Court of Appeal must remand entire community estate for new division when it finds reversible error which materially affects trial court’s just and right division of property; Trial court has wide discretion in dividing estate of parties but must confine itself to community property.

Jensen v. Jensen, 665 SW2d 107; Reimbursement to community for time, toil, talent, & effort to enhance separate estate; The Supreme Ct adopted the reimbursement theory rather than a community ownership theory regarding increases in value of Separate property during marriage, with the effect that community is to be reimbursed for value of time and effort expended by either or both spouses to enhance separate estate of either, other than that reasonably necessary to manage and preserve separate estate, less remuneration received for that time and effort in form of salary, bonus, dividends, and other fringe benefits, those items being community property when received; Stock owned before marriage remained Separate property, subject only to right of reimbursement, if any, for value of former husband’s time and effort in producing the increase in value, should it be determined that former husband and thus, the community had not been adequately compensated therefore during the marriage; Lien was not to attach to former husband’s separate property shares but, rather money judgment could be awarded.

Jones, 890 SW2d 471; Characterization of borrowed funds; Debts contracted during marriage are presumed to be on credit of community and thus are joint community obligations, unless it is shown that the creditor agreed to look solely to separate estate of contracting spouse; Using separate property to pay off community debt creates prima facie right of reimbursement; When separate property not been commingled or identity can be traced, statutory presumption of community property is dispelled–remains separate property even if undergoes mutations or changes; Clear and convincing evidence required to overcome presumption.

Lewis, 944 SW2d 630; Characterization of workers comp benefits; Workers comp settlement paid during marriage is not community property if the claimant’s disability occurred prior to marriage...in this case, not further loss of earning capacity from the injury occurred during the marriage.

Magill, 816 SW2d 530; Taking of separate property by divorce court; Trial court may not divest an individual of Separate property; husband failed to establish that unequal division of marital property was manifestly unjust and that trial court’s mis-characterization of his separate property created inequality that constituted abuse of discretion; Trial court was justified in placing lien against husband’s Separate property and in authorizing foreclosure to enforce reimbursement award even though property was H’s homestead–H had option of preventing divestiture by complying with court’s order to pay reimbursement award.

Norris v. Vaughn, 260 SW 676; Characterization of oil and gas; Follows the title to the land; Separate funds spent for community living expenses should be deemed a gift to the community for its well-being and standard of living; prior to Uniform Partnership Act - change to entity.

Penick, 783 SW2d 194; Tracing separate property: Tax benefits received by community estate through depreciation of former husband’s separate estate are an offset against reimbursement sought by community estate against H’s prenuptial debt on separate property.

Thomas, 738 SW2d 342; Corporate retained earnings; Unless a corporation is a spouse’s alter ego, court upon divorce may not divest a spouse of separate property corporate stock; Retained earnings of Sub S corporation, stock of which was separate property of husband, were not marital property subject to division in divorce action, even though community had paid federal income tax on retained earnings during marriage.

Vallone, 644 SW2d 455; (“Tony’s”)Right of reimbursement of separate or community estate arises when funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit; In absence of pleadings either specifically for or referable to reimbursement of community or separate estate premised on uncompensated time, talent, or labor, such recovery is waived and failure of trial court to consider matter does not constitute error; trial court in granting divorce found husband’s business to worth $1,000,000, found 47% his traceable separate property, set aside proportionate share of stock, awarded wife 70% of remainder and ordered repurchase of wife’s stock by corp and husband, and secured by all stock, did not abuse discretion.

Welder, 794 SW 429 (1990); Inception of title case; Inherited properties and royalty interests ($200k/mo); If separate property and community property have been so commingled as to defy re-segregation and identification, the statutory presumption prevails... when separate property has not been commingled or its identity as such can be traced, the statutory presumption is dispelled; A showing that community property and separate property were deposited in the same account does not divest the Separate property of their identity and establish the entire amount as community property when the separate property may be traced; General rule is that royalties paid for oil and gas produced from the separate property of a spouse are payment for the extraction or waste of the separate estate, and therefore, remain that spouse’s separate property; Community out first presumption to expenditures from the account; Legally and factually sufficient evidence to accurately determine without surmise or speculation, separate property interests; Property is entirely community property when purchased with community debt; The intention of the lender to look solely to the property of one spouse is an evidentiary factor of prime importance in showing by clear and convincing evidence that spouses intended to hold the property as one spouse’s separate property; Facts or data upon which an expert relies in a particular case need not be admissible in evidence if they are of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject; The doctrine of judicial estoppel bars a party who successfully maintained a position in a prior judicial proceeding from afterward adopting an inconsistent position, in the absence of a showing that the prior statement was made inadvertently or as a result of mistake, fraud or duress.

VI. Trusts

Burns, 573 S.W.2d 555; Characterization of trust property and income; The undistributed income of non “discretionary” trusts (distributable at trustee’s sole discretion) and estates which was earned during the marriage is Community property and the trial court errors if it fails to consider such undistributed income as Community property in arriving at property division; Undistributed trust income is not community property where trustee had the right to withhold...beneficiary has no more than an expectancy interest in the corpus...must have a present or past right to require distribution (constructive acquisition) for undistributed to be community property.

Cleaver, 935 S.W.2d 491; Corporate and trust income characterization issues; Discretionary trusts; 1961 Partnership act...gave rise to the Texas “entity” theory, partnership property is owned by the partnership itself, and such earnings are neither community property nor separate property of the individual partners before distribution to those partners; Where wife has a present possessory interest in funds that should have been, but had not been timely distributed to her by the trust is properly characterized as community property; No fiduciary duty exists between H & W as to her handling of her separate property; No conflict of interest of trustee if he received no personal benefit arising out of his service as trustee of trust.

Ridgell, 960 SW2d 144; Characterization of trust distributions; Income received by a married beneficiary on the trust corpus to which the beneficiary is entitled, or becomes entitled, is community property; If property is acquired on the basis of separate credit or separate property, the acquired property would be separate property...if notes paid from trust income, community estate may be entitled to reimbursement.

VII. Partnerships

Harris, 765 SW2d 798; Partnership property-H’s former law firm; H’s partnership interest in his former law firm and his interest in that firm’s contingent fee arrangement for its representation of a case is separate property/prior to marriage acquisition; Partnership property is owned by the partnership entity, not the individual partners; Partnership interest is subject to separate property or community property; Distribution of partner’s share of profits and surplus received during marriage are community property even if partner’s interest in partnership is separate property; It may be possible in some cases to show that an increase in value of a separate property asset was based on some community property factor; Amendments to partnership agreement during marriage do not make increase in value community property; To be community property, additional interest acquired during marriage cannot be analogous to stock splits and increases... mutations and increases in separate property remain separate property.

Marshall, 735 SW2d 587; Partnership property, Divisibility of partnership in divorce; Modern day oil and gas; Pre-nup...the agreement had whatever legal force the law of contract would give it; When the duration of the contract is not expressly dictated by the agreement, courts will frequently presume that the parties intended a reasonable time/necessarily limited as to duration by the happening of any one of several contingencies, the ascertainable contingency determines the duration; With the passage of the Uniform Partnership Act in 1961, Texas discarded the aggregate theory and adopted the entity theory of partnership; Profits during marriage are Community property no matter the characterization of the interest; Provision in agreed temporary orders indicating debt responsibility during pendency is not dispositive of characterization on final trial; When 3rd party makes a gift to the community estate, the gift vests in each spouse, both taking a ½ undivided interest in the subject matter of the gift as his/her Separate property; A usufruct is the right of using and enjoying and receiving the profits of property that belongs to another.

VIII. Grandparents/Third Party Rights

Troxel, 530 U.S. 57, 120 S.Ct. 2054; Grandparent rights; Parents 14th Amendment rights in issue: Parent has fundamental right to rear children unless state must intervene to prevent harm or potential harm; fundamental rights of liberty and interests.

IX. Domicile Restriction

Morse, 929 S.W.2d 659; Relocation of domicile case; Petition for Mandamus denied; Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles...A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law; When alleging that a trial court abused it discretion in its resolution of factual issues, the party must show the trial court could reasonably have reached only one decision; As to determination of legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly; Temporary orders on modification 156.006 versus 105.001; 105.001--A court has authority to enter a post-judgment temporary order affecting a child's safety and welfare under this section regarding establishment of a geographical restriction.

Lenz v. Lenz, 79 S.W 3d 10, Domicile relocation case - German nationals; Jury verdict supported by legally sufficient evidence to meet statutory requirements for modification (positive improvement and in best interest); Courts have recently reassessed the standards for relocation, moving away from a relatively strict presumption against relocation toward a more fluid balancing test (due to increasing geographic mobility and the availability of easier, faster and cheaper communication; Used to be "real advantage" to the parent--now, "good-faith" reason plus child will not suffer from move; Reasons for and against the move, comparison of education, health and opportunities, special needs of children, effect on extended family, effect on visitation and communication with non-custodial parent, unrealistic to assume that divorced parents will permanently remain in same location/each case evaluated on its own unique facts, child's age/community ties, close link between the best interests of the custodial parent and the children/custodial parent's mental state directly impacts on quality of child's life, and possibility and feasibility of parallel move by committed, non-custodial parent.

X. Mental health professionals

Bird, 868 S.W.2d 767; Can’t sue a mental health provider for mis-diagnosis; Statement in an Affidavit filed in a court proceeding is privileged as a matter of law; As a matter of law, there is no duty running from a psychologist to a third party to not mis-diagnose a condition of a patient.

Abrams v. Jones, 35 SW3d 620; Limiting parents rights to confidential mental health records of a child. when the parent is not acting on behalf of the child or when the mental health professional believes that releasing the information would be harmful to the child's physical, mental or emotional health.

XI. Premarital agreements

Beck, 814 S.W.2d 745; Premarital agreement/both represented/he dies after a few years/his heirs want to get at her Separate property; 1980 Amendment to Constitution provided that persons about to marry and spouses may by written instrument partition between them all or part of their property, then existing or to be acquired or exchange community interests; By passing a Constitutional Amendment that specifically refers to the invalid statute, the legislature can expressly validate not only the statute, but all actions taken in reliance on the validity of the statute.

XII. Miscellaneous cases

A.K.P., 684 S.W.2d 762; Considering the equitable nature of proceedings involving children, failure to formally adduce evidence of material change does not mandate reversal; No specific proof showed change in circumstances at trial--original Decree less than SPO; Technical rules and practice are of little importance when the welfare of a child and the relationship of child and its parents are at stake.

Davis, 521 S.W.2d 603; Putative spouse rights; Putative divorce--only necessary to rule out those proceedings where H might reasonably have been expected to have pursued divorce; A putative wife is entitled to the same right in property acquired during her marital relationship as if she were a lawful W; Lord Mansfield rule re H & W not applicable to 3rd party evidence admissibility to prove no access to W for legitimacy purposes.

Dupont v. Robinson, 923 S.W.2d 549; Expert witnesses; Rule 702 requires expert testimony to be relevant and scientifically reliable; Daubert non-exclusive factors re relevant and reliable are 1) whether a theory or technique can be and has been tested, 2) whether the theory or technique has been subjected to peer review and publication; 3) the technique's known or potential rate of error, and 4) the general acceptance of the theory or technique by the relevant scientific community; Also 5) the non-judicial uses which have been made of the theory or technique, and 6) the extent to which the technique relies upon the subjective interpretation of the expert.

Eglehoff v. Eglehoff, 69 USLW 4206; ERISA preemption of survivor’s benefits--divorced spouse gets ERISA benefits over current spouse.

Keen v. Weaver, 46 Tex. Sup. Ct. J. 35; Nothing in ERISA precludes the pension administrator from recognizing that W specifically, voluntarily, and knowingly waived any claim to H's pension when she signed psa awarding H all the parties' rights in H's specific pension (in addition to global).

In re. BIV, 923 S.W. 2d 573; Standing in AG cases; Because the suit affected her parental rights, mother has standing to participate in paternity action and must sign off on agreement when she is a party.

Mitchell, 403 US 190; Court’s authority to make orders re: income tax return filing; A married woman domiciled in a Community property state where wife has a present vested interest in Community property equal to that of her husband, is personally liable for federal income taxes (and filing a return) on her one-half interest in community income realized during the existence of the community, notwithstanding her subsequent renunciation under stat law of her community rights, since federal, not state, law governs what is exempt from federal taxation; clearly indicates that the W had the obligation, not merely the right, to report half the community income; Innocent spouse = party to filed joint return, with respect to omitted income and fraudulent underpayment.

Roosth, 889 S.W. 2d 445; Visitation case -- shit head dad re support/abuse; The privilege of frequent visits with one's children should not be denied to a parent except in extreme cases of unfitness; TFC precludes a T/C from denying parental access unless the court finds that parental possession or access is not in the best interest of the child and that possession or access would endanger the physical or emotional welfare of child; have to show good cause for deviating from SPO; Must give specific visitation enforceable by court; Limitations may not exceed that required to protect child; Exempt property subject to turnover for enforcement of C/S order.

Sproull, 815 S.W.2d 250; C/S contempt; 22 yrs of confinement for C/S arrearage; Right to trial by jury; A silent record will not presume that contemnor has waived right to jury trial.

Coleman, No. 03-02-00762-CV (Austin); Parties' children should not be divided unless there are clear and compelling reasons to do so.

In re A.M., 101 S.W.3d 48; If mom dumps kids on dad, he can both 1) cancel c/s during the time he has kids and 2) claim c/s mom should have paid under157.008.

2. Is Texas the proper state to file the divorce?

Texas is the proper state to file suit for a divorce if either the husband or wife has resided or domiciled in Texas for the preceding six-month period with the intent to stay in Texas. If the person filing the divorce is a Texas resident, the proper county for filing the divorce is the county in which the person has resided for the 90 day period preceding the filing. If the person filing the divorce is not a resident of Texas, the proper county for filing the divorce is the county where the other party resides, without regard to the 90 day residency period.

3. Are there different types of divorces?

In Texas, a divorce can either be a “litigated” divorce where the decisions may be made by the judge, or a “collaborative” divorce where the decisions are made by the parties. For more information on collaborative divorce, click on Collaborative Divorce.

A litigated divorce can either be “fault” (e.g. adultery) or a “no-fault” divorce. Within the litigated divorce there is a wide spectrum in how the case is finally resolved depending on the issues involved and how contested those issues are between the parties. Approximately 95-97 percent of divorce proceeding are resolved short of a bench or jury trial, through negotiation or mediation.

4. What type of divorce is right for me?

The way to determine what type of divorce is right for you is to discuss the facts and issues in your case with a divorce attorney that can explain the options that are available to you.

5. What will be required of a client in a divorce case?

The requirements of a client in a divorce case vary. The following is a non-exhaustive list of requirements of a client in a divorce case:

A. Financial Information Statement - income and expense statement with last 2 years of federal tax returns and last 2 pay stubs attached
B. Inventory and Appraisement - listing of assets and liabilities, including both community and separate property
C. Discovery Responses/providing detailed information and documentation related to property and other issues
D. Testimony at depositions and hearings

6. How much does a divorce cost?

With a relatively brief review of the facts and issues in a case, most divorce or family law attorneys can give at least an initial estimate of the expectation of the total cost. This can then be updated as the case progresses, and an assessment is made of how the other side responds/behaves. Also, the client may decide that some of the initial issues in a case are no longer of interest or are not cost effective to pursue.

The cost for a divorce depends on how contested or complex the issues are with regard to child custody and property division. The cost is also dependent on resources available to the parties (both personal as well as those available from family and friends) and the emotions the parties have tied to the litigation. In addition to attorneys fees, there may well be costs for one or more amicus attorneys, social studies, deposition transcripts, psychiatric evaluations, mediator fees or other professional fees for a child custody case. In a complex property case, financial expert fees and/or other expert fees may also need to be incurred.

The lower end of the cost spectrum is with an “uncontested” or “agreed” divorce. The upper end of the spectrum is the full jury trial on child and/or property issues.

7. How long does it take to get a divorce?

If the parties are in agreement, a divorce proceeding can be finalized sixty days after the Original Petition for Divorce is filed in a case (60 day minimum waiting period in Texas). If the parties are not in agreement, the time it takes will depend on the county where the case is filed, the court’s schedule and the complexity of the case. Most divorce or family law attorneys can provide a reasonable estimate after reviewing the facts of a case. Harris County, Texas (Houston) handles the first or second largest family case load in the U.S. As a result, a scheduling order is issued approximately 45-70 days from the date of filing which will provide a final trial date that is approximately 12 months from the filing date. The smaller, contiguous counties to Harris County do not usually issue scheduling order, so progressing a case is incumbent upon the divorce attorneys prosecuting the case.

8. What happens if the parties to a divorce have children together?

If there are children born or adopted during the marriage, the suit for divorce must also address matters of custody, visitation, and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not or may not be the biological child of her husband, that information must be given to the court as soon as possible. If the wife is pregnant or becomes pregnant while the divorce action is pending, the parties must usually wait until the baby is born before the divorce action can be concluded. This is true regardless of whether the husband is the baby’s father.

9. How does the court determine who gets custody of the children?

Click on Child Custody Litigation for information on this topic.

10. How much child support can I receive/will I pay?

The amount of child support a person (“obligee”) will receive depends upon the “net resources” (see Item #7, below) from all sources of income the person paying (“obligor”) child support.

There is a statutory presumption of a cap on net resources of $6,000 per month, which will normally cap the amount of child support paid. This statutory presumption can be overcome with evidence that the child’s lifestyle or proven needs support an amount above the Texas Family Code guidelines.

The maximum child support from one or more child support orders an obligor can be made to pay is 50% of his/her net resources.

11. How do you calculate child support?

Only the net resources (see Item #5, above) of the person paying child support (“obligor”) are considered unless the obligor is intentionally under or unemployed. Monthly net resources are multiplied by a fraction to arrive at the guideline child support. The fraction for 1 child is 20%, for 2 children 25%, for 3 children 30%, for 4 children 35%, etc.

The foregoing percentages are reduced by formula when the obligor has one or more other children for which the obligor has a legal obligation of support (only biological or adopted children, not step children).

12. What is included in net resources?

a) 100 percent of all wage and salary income and other compensation for personal services;
b) interest, dividends, and royalty income;
c) self employment income;
d) net rental income;
e) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

13. Can a person ever get more than the maximum amount for child support?

Yes, but rarely. The guidelines set forth above are presumed to be reasonable, but a court may determine that the application of the guidelines would be unjust or inappropriate under the circumstance. Some factors that the court will consider relevant when determining whether the guidelines are unjust or inappropriate are the age and needs of the child, the ability of the parents to contribute to the support of the child, any financial resources available for the support of the child, the amount of time of possession of and access to a child, the amount of the person receiving child support’s net resources, child care expenses incurred by either party in order to maintain gainful employment, and whether either party has the managing conservatorship or actual physical custody of another child. This list is not exhaustive.

14. Which parent has to pay for the child’s medical support and health care costs?

There is a statutory presumption that the person paying child support will also have to pay for the child’s medical insurance support, and 50% of the unreimbursed medical expenses.

15. When can a person receive alimony?

Texas was the last state in the U.S. to enact a law on alimony in 1995. Alimony is rarely granted in Texas, but may be included in a Decree of Divorce by agreement of the parties. A person is eligible for alimony (referred to as maintenance in Texas) only if 1) the spouse from whom alimony is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence and the offense occurred within two years before the date on which a suit for divorce is filed or while the suit is pending or 2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs and the spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, is the custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home, or clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs.

16. How much alimony may a person receive?

A person can receive up to the lesser of $2,500 or 20% of the paying spouse’s monthly gross income. A court may award less than either of these two figures if the circumstances call for it.

17. How does a court determine whether a person is entitled to receive alimony?

A court presumes that maintenance is not necessary unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending, unless the spouse is not able to satisfy the presumption because of an incapacitating physical or mental disability even if the person has met the standards set forth in the answer to #10 above. So, you must overcome this presumption first and then show that you have met the standards in the answer to #10 above.

18. How is property divided in a divorce?

Click on Complex Property Division for additional information.

19. If a spouse gives a gift to a person, can the other spouse recover the value of that property upon divorce?

A spouse can recover the value of a gift from the other spouse to someone else if they can show some type of fraud on behalf of the gifting spouse. Gifts to children, generally, can not be recouped. The courts will look at several factors including the relationship of the person giving the gift and the person receiving, the size of the gift, and the amount of the remaining assets in the marital estate to determine if the value of that gift can be recovered.

20. Can I sue my spouse for assault while also filing for divorce?

Yes, a spouse may sue another spouse for an intentional tort such as assault. However, if you do so and recover monetary damages, you will not be able to use this wrongful act during your divorce suit to increase your share of the community property division. The reason for this is that it is equivalent to double-dipping in the court’s view. You can not receive monetary damages for the tort and then receive a higher percentage of property in the divorce decree because of the same wrongful act.

21. Am I entitled to my spouse’s retirement benefits?

Yes. Retirement benefits that are acquired during marriage are considered community property and therefore divisible upon divorce. Social Security benefits are not divisible upon divorce.

22. How are retirement benefits divided upon divorce?

Depending on the retirement plan, benefit division may require a Qualified Domestic Relations Order (“QDRO”), in addition to Decree of Divorce. The terms of the retirement plan will determine how and when you will receive those benefits.

23. What is the tax liability upon divorce?

Conveyance of property by a Decree of Divorce generally does not involve a tax liability. However, there are circumstances that give rise to tax liability. For example, if you receive tax deferred property, such as retirement benefits, you may be subject to income tax when the funds are withdrawn. You should discuss the details of your particular case with your CPA.