If there were children born during the course of the marriage, all issues pertaining to the children must be addressed during divorce proceedings.
The first “kid issue” is the title of the parties. In Texas, parents normally will be named joint managing conservators. (Note that we are only discussing the title here, and not any other issue.) The alternative is that one parent will be named as sole managing conservator with the other named possessory conservator. This usually occurs only in circumstances where there is a concern about one party’s parenting abilities or when the parents have such a severely dysfunctional relationship that they cannot make joint decisions which are in the best interest of the children.
The second “kid issue” to be resolved involves the rights and duties each parent will have regarding the children. Examples include educational and medical decision-making, or consenting to the marriage or enlistment in the military of the child. In a joint conservatorship situation, both parents typically share all rights and duties, except that one parent will usually be given the exclusive right to determine the primary residence of the children. That parent will usually have the exclusive right to receive child support as well. Contrasting, in a sole/possessory conservatorship arrangement, the sole conservator will have the exclusive right to make most of the decisions regarding the children.
Third, each parent’s possession times with the children must be established. Usually one parent will receive the Texas Standard Possession Order, which gives that parent possession generally on the first, third, and fifth weekends of a month, one weeknight during the school year, 30 days during the summer, and one-half of the holiday times. However, there has been a recent trend toward negotiating for more time on behalf of the non-primary parent.
The last “kid issue” addresses child support. Child support in Texas is a mathematical formula based on the first $6,000 net income of the parent obligated to pay support. In order to vary from these guidelines, special circumstances must be shown. The parent paying support will also usually be obligated to provide health insurance, but both parents will share equally in the uninsured medical expenses.
Another issue that must be addressed, whether or not children are involved, is property division. Regarding property, there are generally four broad issues to address.
First, all of the property owned by either spouse must be identified. Many times one spouse will know less about what property is owned by the spouses, so identification of the property is very important.
Once all of the property is identified, the characterization of that property must be established. Texas is considered a “community property” state, meaning there are two types of property — community and separate — that make up the marital estate.
Generally speaking, “separate property” is what was owned prior to the marriage or obtained during the marriage through gift or inheritance. “Community property” is all property acquired jointly. The legal presumption is all property that exists at the dissolution of a marriage is community property. If one party claims an item as separate property, the burden rests on that individual to prove that claim.
The third property issue is to place values on the community property. This can be done either through a party’s opinion or through expert valuation. Values are important in evaluating whether the overall property division is fair.
Lastly, a determination must be made on how to divide the community property. Please note that the judge has no authority to divide separate property upon divorce. Community property is the judge’s only concern.
Typically, the community property is divided equally. One spouse may request an unequal division if there are certain issues of fairness that require it. Examples might include a disparity of earning capacity after the divorce, fault in the break-up of the marriage, or contribution of a spouse to the creation of the community property. Regardless, the judge must ultimately find that the division of the community property is “just and right.”
Mike McCurley is a name partner in the Dallas family-law firm McCurley, Orsinger, McCurley, Nelson & Downing. He has been a divorce lawyer for more than 25 years and is a past-president of the American Academy of Matrimonial Lawyers.