FAMILY LAW FAQ

What is Standard Possession?

In Texas, “possession”, at least in part, means visitation. It describes which parent has “possession” of the child, or children at any given time.

The Legislature provided a “standard” or default visitation schedule. It first gives the parents the right to alter the schedule in any way upon which they can agree. In the absence of a different agreement, the schedule for the parent who doesn’t provide the primary residence is the following, if the parents live within 100 miles of each other:

  • Beginning the first, third and fifth Fridays of each month and ending on the following Sunday.
  • During the school year (even if the child is not yet in school), every Thursday evening.
  • Thirty consecutive days in the summer.
  • Every other year, from the day school recesses for Christmas break, until noon on December 26th.
  • In the alternating year, from noon on December 26th until the evening before school resumes after the holiday.
  • Thanksgiving break in the year the parent does not have Christmas day.
  • Dad always gets Father’s day.
  • Mom always gets Mother’s day.
  • Some time in the evening of each child’s birthday (not the parent’s birthday).

Standard possession can be modified to fit the situation of the parents. It can also be expanded to include more time. See expanded standard possession.


What is Expanded Standard Possession?

The parent who does not provide the primary residence has the right to request standard possession be “expanded”. If requested, the Court will order it, unless there are compelling reasons to use a different schedule. Each possession period begins when school lets out and ends when school next resumes. (This is true even if the child is not yet in school.)

During the school year, possession every Thursday begins when school ends and continues until the child is returned to school on Friday morning. Possession begins again when school ends on Friday, and continues until the child is returned to school on Monday morning.

The parents can agree to modify this schedule.


What is a Joint Managing Conservator?

In Texas, a conservator is a person who has rights in regard to a child. A child is subject to the conservator until they turn 18, or finish high school, whichever occurs last. Joint managing conservators means that each parent shares specific rights to control of the child. It does not mean the child lives half of the time with each parent – although that arrangement is possible.

One of the rights usually assigned to only one of the parents, even if they are joint managing conservators, is the right to establish the child’s primary residence. That is what is commonly called “custody”.  The parent who does not have that right will usually have a possession schedule, or “visitation”. That parent will also likely be required to provide child support, including health insurance.


What is guideline child support? How much child support will I have to pay?

The Texas Legislature has spelled out guidelines for calculating child support to be paid by the parent who does not provide the primary residence for the child. Generally, it is calculated on the “net” monthly income of the paying parent. “Net” means gross income less taxes, social security, union dues and health insurance for the child. The guidelines apply to the first $7,500.00 of net monthly income, as follows:

1 child = 20%
2 children = 25%
3 children = 30%
4 children = 35%
5 children = 40%
6+ children = not less than 40%

If the paying parent, or obligor is legally responsible for children who live with someone other than the parent entitled to receive support (the obligee), then the percentages are modified. For example, if the obligor has two children, one in this case and another child who lives with a prior spouse, then the percentage would be reduced from 20% to 17.50%. There are tables for various situations. If some of the children of a marriage live with one parent, and some with the other parent, there are other methods for calculating the proper amount of child support to be paid.

If the paying parent, or obligor has net income which is higher than $7,500.00 per month, additional support can be awarded upon proof of special needs.

If a paying parent gets a portion of his or her income from commissions or bonuses, support may be determined by using the average monthly income over one or more years,  the court could award a percentage of each bonus, or the court could craft another solution.


What is community property?

Generally, all property acquired by either spouse from the date of the marriage until the date of divorce is “community property”, and subject to division by the court. How property is titled, and who bought or paid for the property is not determinative. There are exceptions. Property inherited, property obtained as a gift and property acquired using separate property is likely separate property. Property owned by either spouse prior to marriage is separate property. Also, certain portions of an award or settlement obtained by a spouse for personal injuries – such as a recovery for pain and suffering in a car wreck suit, are separate property. The spouses – or the “marital estate” –  can acquire an interest in the separate property of a spouse, in certain circumstances. The court may divide community property equally, but it can also divide it in any other manner which it determines is just and right. There are many factors the judge can consider in determining that a division should be other than equal. The law presumes that property acquired during the marriage is community property, and there are detailed rules concerning what is required to prove that property is separate property.


What is separate property?

Property owned by a spouse prior to marriage, property inherited, property obtained as a gift and property acquired using separate property is likely separate property. Also, certain portions of an award or settlement obtained by a spouse for personal injuries – such as a recovery for pain and suffering in a car wreck suit, are separate property. As a general rule, the court can not award one spouse’s separate property to the other spouse. The  spouses – or the “marital estate” –  can, however, acquire an interest in  the separate property of a spouse, in certain circumstances. Generally, the party who is asserting that property is separate, has the burden of proving that contention. There are detailed rules concerning what is required to prove that property is separate property.


What is mediation?

Mediation is a process by which parties attempt to settle their legal dispute, without having the decision made at trial. The mediator is an independent, third party whose only job is to facilitate a settlement. The mediator does not make a decision, and can not give legal advice to either party. In general, the mediator tries to help each party find ways to reach an agreement and to understand the risks involved in taking the dispute to a judge or jury. It is in wide use in both family and other types of civil litigation and enjoys a very high success rate.


Does Texas have alimony?

Texas does not have alimony, but it does have spousal support. The court can order one spouse to provide financial support for the other during the time between the filing of the divorce action and the final decree. In addition, in some cases of family violence and if the parties have been married for at least 10 years, and if the court finds that one spouse needs financial help, the court can order the spouse with greater earnings and earning potential to provide financial support to the other for up to five years. If the marriage is more than 20 years, the period can be up to seven years, and if it is over 30 years, 10 years. The amount and duration depends upon the ability of the paying spouse to pay, the needs of the receiving spouse and the length of time the court feels is reasonable to allow the receiving spouse to increase their income.


How long does a divorce take?

In Texas, the court can not grant a divorce sooner than 60 days after the case was filed. Unless the parties are in agreement on all the elements of child custody, support, property and debt division and financial support for either spouse (spousal support) it will usually take longer. The amount of time will depend upon the complexity of the issues to be decided, as well as the schedule of the judge to which the case is assigned.