Frisco Divorce Attorney & Spousal Maintenance

Until recent times, Texas was the only state in the country that did not provide some form of alimony in the case of divorce. While other states have several forms of alimony that can be imposed, Texas code allows for only one, “Spousal Maintenance”.

Texas’ spousal maintenance is narrowly defined. It is very narrow in its scope and could be very difficult to get in many cases. This is one of many, many reasons that discussing your situation with a Frisco divorce attorney before the case is even filed is that much more important.

Spousal support is limited: It is only given for a short period of time and only in small amounts. There are other requirements that are involved as well.

The Duration of Texas Spousal Maintenance

According to Texas Family Code, spousal maintenance has a time limit of no more than three years but can be ordered to be a much shorter period. During that time, the spouse who is receiving the payments must continue to meet certain criteria as well as be actively pursuing a job or an education (or both) to continue to receive them.

The Amount of Spousal Support

Again, the judge can choose to lower the amount, but the upper limit is either $2500 a month or up to 20% of the payer’s income, whichever comes first. The amount of this payment can be modified by an order of modification suit, but it will always be adjusted down, never up.

Who Can File for Spousal Maintenance?

As will be explained by your Frisco family law attorney, Texas Family code has strict restrictions for who can ask for and receive court ordered spousal support and maintenance. The criteria include:

• A marriage that lasted at least ten years with one party who does not have enough property to provide for their own minimum needs.
• A spouse who is not able to support themselves due to a mental or physical incapacity to do so.
• A spouse who is not able to work outside the home because they are caring for a child who has a physical or mental incapacity.
• A spouse who lacks earning potential

Spousal maintenance can also be ordered in cases where family violence was committed.

The spouse who is awarded the spousal maintenance may forfeit that award if they are not actively seeking an education or employment.

Exception to the Time Limit

While the spousal maintenance may run for three years or shorter in most cases, there are exceptions, particularly in the case of a disabled spouse. When there is a proven disability, the spousal support can be structured to run for as long as the disability continues; however, the judge may order periodic reviews of the case to make sure that the disability is actually continuing.

Contractual Alimony

As implied by the name, contractual alimony is one that is agreed upon by the two parties but is not ordered by the Texas Family Code. The contractual agreement is one that must be agreed upon by both parties and may have tax advantages for both parties. It can also be used as a means to ensure that the children will remain in the family home with the resident spouse especially if the contract states that the mortgage is paid even in part by the alimony money received.

If you are going through a divorce, even one that seems like it is congenial at first but feel that you are entitled to spousal support and maintenance of any kind, it is important to discuss this with a Frisco divorce attorney who can help you understand not only how to file for consideration for this but the restrictions that are involved as well.

Frisco Family Law Lawyer Explains Conservatorship

If you live in Frisco, Texas, and going through a divorce or other legal family altering procedure that you seek the advice of a Frisco family law lawyer so that all of their rights are protected and the best care of the child is established.

One aspect of a divorce is the consideration of where the child will live and who will have the say over the decisions of that child. While in their hearts, most parents do want to do what is right for their child at all times, in a heated situation, it might be difficult, if not impossible, to remain civil and hurt feelings can arise.

Texas Family Code provides the option for a parent to be a managing conservator or a possessory conservator of a child. How these are determined and the time spent with the child may be the result of a lengthy court process, with the court looking at a number of criteria before a determination can be made. It is important that you have the guidance of an attorney at Frisco so that you do not give away any of your parental rights in the midst of the rancor.

It is important to understand the difference between the two types of conservatorship as well.

• Possessory Conservator: Has only limited authority to make many decisions on behalf or in relation to the child.
• Managing Conservator: Has much broader authority to make a number of decisions and can provide much more guidance in the child’s life.

In addition, the joint managing conservatorship can also be established but might be confusing as well. The term “joint” does not require an equal division of possessory time related to a child. A specific schedule may or may not be established depending on the situation between the two parents. It is the needs of the child and the child’s best interests that are used to determine this schedule.

The managing conservator may be given more authority to make decisions rather than more actual time to spend with the child. The Texas Family Code also establishes three lists of parental rights. Each parent has some rights just because they are parents; however, there are additional rights, obligations and more that are established by the court system. The most important of these parental rights could be considered to be that related to residency, health and school. Where a child lives, their health and their education are important to both parents.

The Texas Family code also sets forth the following Parental Rights and Duties, which the Frisco divorce attorney can explain in greater detail where needed:

• The right to have access to the health records. (Each parent should have the right to see what is being documented in their child’s health records.)
• The right to see educational records so that they can be informed and involved during the educational process.
• The right to consult with a doctor (it is important that each parent get the chance to speak to the doctor directly in case there are misunderstandings or information is being changed or withheld).
• The right to consult with school officials for much the same reasons as above.
• The right to attend and to participate in school activities.
• The right to be designated as an emergency contact on the child’s forms, and so on.
• The right to manage assets from relatives on behalf of the child (this can include money for birthdays, holidays, and larger sums)

The Texas Family Law codes also establish the following Rights of the Conservators while they have possession of the child:

• The parent will have the right to conduct moral and/or religious training of the child.
• The parent will have the duty to provide care (as further established within these same codes) protection and reasonable discipline.
• The duty to support the child including providing clothing, food and shelter.
• The duty to provide any and all aspects of health care including: medical, dental, surgical and mental health care.
• The duty and the right to consent to emergency care and treatment in the event of an emergency of any kind.

The Rights of the Sole Managing Conservator under Texas Family Law:

• The right to establish residency (the parent will choose where the child will live).
• The right to consent to either enlistment in the armed forces or to marriage.
• The right to consent to all types of health care treatments as deemed necessary.
• The right to represent the child in legal actions and to help or to make legally significant decisions.
• The right to receive and then to disburse support payments as established by the court.
• The right to make educational decisions on behalf of the child.

The Frisco family law attorney will also explain other provisions that may be covered in a binding agreement which can include the cost of health care which is typically split 50-50 between the parents. The courts also like to stress how important it is that everyone remain civil and cordial to one another and that all adults act like adults when dealing with one another directly or when they are talking about one another. Fostering good relationships between the divorcing parents makes the transition easier for the child and makes everyone happier in the long run.

Frisco Divorce Decree Modification

In Texas, the final court order of divorce is called the Decree of Divorce and includes all of the orders that are relevant to the case including the division of all possessions and assets belonging to the couple (marital property), the naming of the conservator (other states call this “custody”), the possession periods (or visitation orders) and all facets of child support. At the time that the order is signed and entered into the official court record, it was deemed to be the best for everyone, especially the child or children in question. However, the court does allow that situations change and that the original decree may no longer be in everyone’s best interest.

The Texas court system does encourage parents to work together to find the modification and agreement that works for everyone; however, this does not change the original order nor does it change any of the rights and obligations of the parents set forth by that order. The orders must be approved by the judge and then entered into the official record or the law will enforce all original orders. Although most modification suits can be accomplished without hearings or trials, it is still a good idea to consult a Frisco family law attorney to assure that all rights are being protected and that the order will be completely in the best interest of the child.

What Cannot Be Modified After a Final Decree of Divorce Is Entered?

In most cases, the court cannot modify the original division of assets and liabilities after it has been entered by the court and the time period allowed for appeals has already expired. There is an exception to this ruling, but it only happens in very rare occasions and is not considered to be a modification suit. This refers to fraud that can be proven during the original case.

What Can Be Modified?

Almost anything that relates to the care and support of the child or children can be modified when circumstances warrant it. The court retains this power to modify until the child reaches the age of 18 or graduates high school, marries or becomes financially independent.

The parents may decide to work out a different possession schedule (visitation agreement) or may choose to work out a different level of child support. They would still need to consult a Frisco divorce attorney to file for a modification of that order or the parent ordered to pay in the original order could face contempt of court charges and more.

No matter how amenable an agreement between the parents might be, even if it is written down, it is not official and the court will go by the original official order in the event of any dispute. Each parent and their attorney must sign the order which is reviewed by a judge and then approved and entered into the court documents as the new official order, superseding all previous orders in the case.

The Steps of Filing and Receiving a Modification Order

The first step is to contact a Frisco family law attorney who can help you to file a petition to modify the prior orders. In this document, which is called a Petition to Modify Prior Order in Suit Affecting the Parent and Child Relationship, the terms of the modification that is being sought and the reasons for seeking it must be clearly defined. Any petition that is using the health and safety of the child as a basis must also include clear and specific facts for why the child might be considered to be in danger.

The Second step Is Citation and Service

All Parties involved in the modification suit, including all parties involved in the original filing must be served with a petition and citation. The Citation spells out what should happen next including the need to file a written answer to the filed suit and defines the time limits that are involved. The Court cannot enter a modification order if all parties are not properly served and given the chance to respond to that suit.

Temporary Orders

The Court can grant temporary orders that provide immediate changes to the prior orders only if there is a clearly established and proven need for that change to take place.

Final Hearings

After the Citations have been issued and all parties have had the chance to respond accordingly, the suit will move forward. In most cases, it is only the judge, the parents and the attorneys who need to be there; however, in cases where the child’s conservatorship is in question, there may be a jury trial. The jury will only decide who is granted conservator of the child and at what level.

Modified Orders

Once everyone has had a chance to speak and all agreements are in place, the judge will sign the document and it will entered into the record as an “Order to Modify Prior Orders.”.

Special Considerations and Individual Cases

The Court recognizes that it is not always the parents who are caring for and raising the children of the state; however, the rights of grandparents are not well established at this time. They can, however, file for managing conservatorship if they are willing and able to document that the parents are unfit in any way. The grandparents may also request limited possession orders if their time with the children is being unfairly lessened or denied by the parents.

In addition, any person who has had the child living with them for at least six months may ask for support or conservatorship as well.

The court looks at each case individually and makes case by case decisions, making it all the more important to discuss the details of your particular case with a Frisco family law attorney.

The Levels of Conservatorship

According to Texas family code, the court may choose to appoint a parent as a managing conservator or a possessory conservator of their child or children.

• The Possessory Conservator has limited authority to make many decisions for the health, safety and welfare of their child.
• The Managing Conservator has much broader authority with respect to decisions and is able to provide more guidance and influence on the life of the child.
• The Joint Managing Conservator, also called joint custody in other areas, does not technically require equal division of possession time for that child and there may be a specific schedule for that possession to occur.

The Parental Rights

The most important of all of the parental rights and obligations are those that pertain to where the child lives, where the child goes to school and the health of that child. Those rights include:

• Access to health and educational records
• The right to consult with the child’s doctors or the school officials where he or she attends school
• The right to attend and to participate in school activities.
• The right to be designated as the child’s emergency contact person
• The right to manage assets for the child including those received from relatives.

The Right of the Conservators During Possessory Time with the Child

Each of the parents will have certain rights and obligations that they must meet during their time they spend with their child. These include:

• The right to conduct moral and religious training
• The duty to provide care, protection and to exercise reasonable discipline over the child
• The duty to support the child including providing clothing, food, shelter and medical care
• The duty to consent to emergency medical care.

It is the right of the sole managing conservator to establish residence. In addition, that particular conservator can grant permission to enlist in the armed forces or to marry, to represent the child in legal actions and to make legal and significant decisions. That parent (or other so named person) may also receive and disburse support payments and make educational decisions.

The court will typically order the parents to split the cost of the child’s health care coverage evenly, but that may not always be the case. The court also encourages each parent to make a good faith effort to foster love and respect and to provide the child with an adult and mature example to follow when dealing with the other.

The Rights of the Children Themselves

Judges typically do not want to see a child testify; however, if the child is age twelve or older, they may interview them so that the child’s preferences can be heard and considered. The interview will be private and may or may not involve the attorneys at that time. The child will also be asked to sign a statement of choice; however, this is not a legally binding document and the judge may choose to rule in favor of the opposite parent.