By Earl N Jackson
Dallas, Texas
Board Certified by the
Texas Board of Legal Specialization
214-369-7100

It seems that everyone has an opinion as to “what the law is” or wants to be an “armchair lawyer.”  All cases are different and rest upon a different set of fact patterns.  Your’s may be similar to some but probably not.  Sometimes, a client needs to understand that the law may not be what “they have heard.”  The following bullet list addresses some of these issues:

• Child_Custody
• Texas Child Support
• Texas Divorce and Alimony
• Marital_Property
• Unequal Division of Marital Property is Possible
• Common Law Marriage – Not by living together, Not by having a child.

Joint Custody — In Texas, everyone gets Joint Custody with certain exceptions.  In Texas, we call it Joint Managing Conservators (“JMC”):  It is presumed that joint custody or joint managing conservator is in the best interest of the child(ren). Unless there is evidence of family violence, it is presumed that the parties will have joint custody. The Court will always appoint both parents as “joint custodians” or “Joint Managing Conservators” absent facts that show it is not in the best interest of the child.  See Texas Family Code §153.131(a). The vast majority of all divorces involving children will result in both parents being appointed “joint managing conservators.”  Texas is all about joint parenting.

Standard Possession Order: As to visitation, the Court usually implements the Expanded Texas Standard Possession Order. The Standard Possession Order is a codified order that sets forth those periods in which one parent will have a right to possession and access to a child. Note, both parents have a right of possession to the exclusion of the other as set forth in the possession order. All Standard Possession Orders call for agreement between the parties and in the absent of agreement the Standard Possession Order applies. Note, a violation of the possession order may result in a contempt charge. If held in contempt, the party violating the order may very well go to jail; be ordered to pay fines and the attorney’s fees of the opposing party. In one case, a North Dallas soccer mom found herself paying $9,000.00 in fines “instanter;” $15,000.00 in attorney’s fees and went to jail for a week. Many courts will not hesitate to send someone to jail for 30 days.

Texas Child Support

Child Support Guidelines: The Texas Family Codes provides for “Child Support Guidelines” in order to determine child support. In most circumstances, the Court will follow the guidelines. The table below, sets forth the basic parameters of child support. Recognize that this is a simplified version of the actual tables used and does not take into consideration all factors:

Child Support Net Resources – for the purpose of calculating child support net resources —

All Income — Child Support Net Resources Include all income from any source such as 100% of all wage and salary including commissions, overtime pay, tips and bonuses; interest, dividends and royalty income; any self-employment income; any “net” rental income (defined as rent after deducting operating expenses but not depreciation); and any and all other income actually being received (severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security, unemployment, disability and workers’ compensation regardless of source, gifts, prizes, spousal maintenance and alimony). See Texas Family Code 154.062.

Note – “all income” also includes regular gifts received from another. In a reported case, Grandparents supported their son while he was attending school. This support included rent, car payment and regular cash support. All of this is gifted.  There is no W-2 or 1099 involved. The court held that regular support is income for the purposes of calculating child support. 

Child Support Net Resources does not include return of principal and capital; accounts receivable, benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program; or payments for the foster care of a child.

Deductions — Child Support Net Resources are determined by deducting social security taxes; federal income tax for a single person claiming one exemption and the standard deduction; state income taxes, union dues; expenses for the costs of health care or cash medical support for the obligor’s child ordered by the court under Texas Family Code 154.182.

Community Property? 

In Texas all property owned by either party is presumed to be community property unless it is proven otherwise.  Any and all property owned by either spouse during the marriage is “presumed” to be community property.  Grandpa’s shotgun that has been handed down, presumed to be community property.  The log cabin in Marshall that Dad built in the 70s and then gave to me, presumed to be community property. In Texas, it does not matter who’s name is on it or how it is titled. If the property is owned during the marriage, then it is presumed to be community property and subject to the “just and right” division of the Court. The aforementioned shotgun and/or log cabin are likely to be more properly characterized as “separate property” {see below} but it is on the person claiming the shotgun or log cabin as separate property to prove it is separate property. 

The just and right division of the marital estate: The only hard and fast rule for the division of marital property is a “just and right division.” An ambiguous term at best. In most cases, the Court will divide the property along the lines of 50/50 absent some circumstance which indicates otherwise. Circumstances calling for an unequal division include disparity of earning power, spousal or child abuse, and/or size of the separate property estate. If Spouse A is making $350,000.00 per year and Spouse B wil do well making $45,000.00, then expect Spouse B to receive a greater share of the marital estate. Note, if one spouse proves to be “a bad guy,” then expect unequal division. Our best case was a 90/10. Husband was having sex with various neices (yes, indeed he was – he video taped it); and wife was bilind although gainfully employed with the IRS. She received 90% of the estate.

Separate Property.

Separate property is any and all property owned by a party prior to the marriage, inherited by a party, was gifted to a party or is compensation for bodily injury but not loss of income. It also includes the mutation of any separate property. For example, if I owned a cabin in the woods prior to my marriage (separate property by inception of title rule), I then sell that cabin to buy another one then the newly purchased cabin is separate property. The burden of proof is upon the person claiming separate property to prove that it is separate property. You will need deeds, bank statements, and other documentation to prove the separate property characteristic. Please do not rely upon your spouse’s good graces because “she knows.” He or she “may know” that you bought your house two weeks prior to your marriage, but unless you can prove it it is presumed to be community property.

The court cannot divide or divest one spouse of title to his or her separate property. Eggemeyer v. Eggemeyer 544 S.W.2d 137 (Tex. 1977); Cameron v. Cameron, 41 S.W. 210 (Tex. 1982). Separate property is all property owned by the spouse prior to marriage, all property received by the spouse as a gift, and all property inherited by a spouse.

Common Law Marriage in Texas

A common law marriage is not formed by simply living with your partner or having a child with him or her. Living together does not make a common law marriage no matter how long the parties have lived together.  Neither does making a baby with your partner create a common law marriage. 

“I have lived with my significant other for 10 years, do we have to get a divorce?” Living together has nothing to do with a finding that the parties are “common law.”

A common law marriage, in Texas, is formed by one of two methods: First, if the parties have signed a “Declaration of Marriage” pursuant to Section 2.402 of the Texas Family Code then the parties are married. Or, the parties agreed to be married; after they agreed to be married they lived together as husband and wife in this state; and they held themselves out to the public as being married. 

The second test above is the most common cause for concern between parties. Answer, just because you lived with a significant other for a period of years, does not make you married. You have to have fulfilled all three requirements above in order to be married. “But we had a child together.” It does not matter – a child is about paternity in this case it is not about being married. Having a child is not one of the elements of common law marriages.

If you are unmarried and desire not to be married, DO NOT hold yourself out to the public as being married. Examples, signing off on some hand written “agreement to be married” document or filing tax returns with the IRS wherein you and your spouse are filing jointly. In one case, it was a birthday card from “Husband” to “Wife” which said “To my wife . . . happy birthday.” 

There is a “statute of limitation” on an allegation of common law marriage. If a Court proceeding in which a marriage is to be proved by §2.401(a)(2) of the Texas Family Code is not commenced by the second anniversary of the date on which the parties separated and ceased to live together, it is a rebuttable presumption that the parties did not enter into an agreement to be married. In other words there is a statute of limitations for a divorce proceeding as to common law marriages, albeit, an informal and not absolute statute. A person under 18 may not be a party to a common law marriage or execute a declaration of informal marriage.