Who Pays Child Support In A Divorce Case?
Both parents are legally obligated to support their children, however, in Texas Family Law cases the non-custodial parent is the parent responsible to pay ordered child support. In Texas, we have managing conservatorship and we have possessory conservatorship. The managing conservator in Texas is the conservator with most of the rights to determine what’s in the best interest of the child, like where the child lives and goes to school. The possessory conservator has the limited right to possession of the child on a visitation schedule and usually carries the obligation of paying child support. In most cases in Texas, both parents are named as joint managing conservators, but the primary conservator is the parent with the exclusive right to determine the residence of the child. That is the parent who has primary custody of the child. The other parent, even though they are joint managing conservator, can’t determine where the children live.
What Factors Affect How Property And Assets Are Divided In A Divorce?
The general rule for the division of property in a Texas Divorce or Annulment is found in Texas Family Code Sec. 7.001. “GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”
Further, Texas is a community property state and the court may only divide the assets of the marital community. Community assets are assets that are acquired during the term of the marriage are considered jointly owned between the two parties to the marriage and are normally split 50/ 50.Any assets the parties owned prior to the marriage or obtained by gift or inheritance are considered separate property and wouldn’t be subject to a division of the marital estate.
Subject to the general rule of division of assets as stated above, the court considers fault in the breakup of the marriage, wasting of marital assets by one spouse, disproportionate earning capacity in determining the division of the community’s property. In addition, parties may seek reimbursement in the event one spouse has used community assets or separate assets for the improvement of that person’s separate property.
Are Pension And Retirement Programs Divided Just Like Other Property In A Divorce?
Pension and retirement plans are divided just like other property in a divorce, but it requires an extra step. In a case with a 401(k) or other retirement plan, you must have a separate order that the court signs and delivers directly to the administrator of the plan, ordering the administrator to divide up the retirement account according to the terms of the order. We call that order a Qualified Domestic Relations Order. (QDRO) Generally, plans are divided up based on the length that the party has owned the plan and the length of time that the parties have been married.
Can A Request Or Petition To Modify A Decree Be Challenged Or Opposed?
A Suit to modify is just like any other lawsuit. The petition, referred to as a Suit Affecting Parent Child Relationship (SAPCR) or Motion to Modify is filed with the District clerk and then the district court clerk issues a citation, which is served on the other party. That party has 20 days and until the next Monday at 10:00 AM to file an answer. Once the petition is filed, usually there’s an early request for temporary orders, so the court will schedule a hearing for those temporary orders. In that hearing, the court will determine the custody of children while the suit is pending, temporary child support and spousal support, possession, and any other orders that are necessary to maintain the status quo and protect the parties and the child[ren] during the litigation.
Once you’ve gotten through that stage of the case, you go through the same process you would in any other civil court case. The parties will exchange discovery requests which consists of Requests for Disclosure, Requests for Production, Requests for Admission, Interrogatories, and Depositions. Each form of discovery is designed to elicit information related to the claims and defenses of the parties and it is essential that you take time to make sure the information you provide is accurate. This is often the most expensive stage of the litigation.
Once discovery is complete, one or both of litigants may file a Motion for Summary Judgment. This is not common in family law litigation, but it is permissible and in an appropriate circumstance, may be warranted.
Most courts in Texas require the parties to a child custody case to participate in mediation. The parties present the case to a mediator who acts as an impartial third party to help the parties to the lawsuit settle the case without a trial. If mediation fails to settle the case the parties continue to prepare for trial and often file pretrial motions asking the court to rule on matters which are likely to arise in trial. The trial may proceed before the Judge or the parties may elect to present the case to a Jury in appropriate situations.
Depending on the outcome of the case at trial one or both parties may ask the court for a new trial. A Motion for New Trial must be filed within 30 days from the date of the judgment. At the new trial, the court can consider new evidence, or the court may consider or reconsider the decision of the judge or jury to ensure the judgment is consistent with the evidence and applicable law.
Finally, the parties may elect to appeal an undesirable judgment. Within 30 days of a judgment, or longer if a Motion for New Trial has been presented, a party must file a Notice of Appeal and ask the court reporter to prepare the transcript of the trial with all pleadings and exhibits. The parties are given an opportunity to present briefs to the Court of Appeals and the Court of Appeals may or may not set the matter for argument. The Court will render a decision once it has had an opportunity to consider the record and arguments of the parties. One or both parties may appeal the decision of the Court of Appeals to the Texas Supreme Court for a final determination. The Texas Supreme Court may or may not accept the appeal for consideration. You file the petition, it is served on the other party, and that party files an answer. Then, you go through the normal steps of litigation, which include discovery, dispositive motions, mediation, and then a final hearing or a trial. The court determines whether the requested modification is going to be granted and to what extent.
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