Divorce is the termination of a marriage relationship. Since 1974,
Texas has allowed for "no fault" divorce and the majority of divorces
today are rendered on a finding of no fault of either party.
The question of custody concerns the possession of and access to minor
children. Currently, the prevailing view in Texas is that children
should have the maximum amount of access to both parents (barring family
violence, child abuse, or some other compelling reason to the
contrary). This result has been achieved by expanding the
non-possessory parent's visitation schedule, and by legislatively
mandated geographic restrictions on the child's residence.
Property, Characterization and Division
Texas is a community property state and there is a legal presumption
that all property owned by the parties at the time of divorce is
community property. If one of the parties wishes to claim an asset as
his or her separate property, they have the legal burden of proving that
proposition. All separate property (once proven) must be awarded to the
owner and the Court cannot do otherwise. All remaining property is
community property and subject to be divided by the Court (if the
parties cannot agree upon a division). Although the starting point for
most Judges is to divide property 50-50 between the parties, the Court
is not compelled to do so. The Judge has the right to consider equities
such as a disparity in income between the parties or fault for the
breakup of the marriage on one party with the result that the Judge may
intentionally give one party more than 50% of the community assets.
Paternity (both voluntary and involuntary) is the determination of
parentage between a parent (almost always a father) and a child. In
certain circumstances, this can be done by the imposition of legal
presumptions (such as a child being born during the man's marriage to
the mother) and can also be done by genetic testing.
In the state of Texas, it is legally presumed that each parent will
support their children commensurate with their ability. Normally,
ability means income. There is a formula for the calculation of child
support contained in the Texas Family Code and basically, it is fair to
say that the more you make, the more you pay.
There are other relevant factors to be considered by the Court such as
the number of
children before the Court and the number of other children for whom the
obligor must also pay support. The Court also has the right to take
into consideration special circumstances and is not absolutely bound by
the calculation set out in the Texas Family Code.
All questions occurring in the Suit Affecting Parent-Child Relationship
including custody, visitation, and child support, are subject to being
modified by the Court (upon proper Motion by either party) until the
child reaches 18-years of age or graduates from high school (which ever
Adoption covers a wide range of situations from a relatively simply
consensual step-parent adoption to a rather complex contested interstate
The Texas Legislature has now codified the right of married parties,
parties intending to be married, and non-marital parties intending to
cohabit to enter into contractually binding agreements concerning their
property, debts and other rights and obligations.
Michael P. O’Reilly, PC
500 N. Shoreline Suite 604 N.
Corpus Christi, Texas 78471