Family Law Practice

Family lawsuits are not only one of the most emotionally charged suits to litigate, but also the suits where the most can be at risk. Your children, assets, and livelihood can be on the line. Let us help you through this stressful circumstance.

Law Offices of Tristan C. Robinson, P.L.L.C. Family Law Division

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Experienced Family Law Professionals from the Law Offices of Tristan C. Robinson, P.L.L.C.

Disclaimer: Our law office has provided the below information as a point of reference to help you understand the basic/common family law issues that we deal with and to help you answer basic questions. The below information is not a substitute for consultation with an attorney and should not be considered as much. The below information does not constitute our firm offering you legal advice.

Common Law / Informal Marriage
Community Property / Separate Property
Custody Issues
Divorce
Enforcements
Mediation
Modifications
Partition Agreements
Premarital Agreements / Prenuptial Agreements
Protective Orders & Family Violence
Terminations


Common Law Marriage / Informal Marriage

  • What does it take in Texas to prove an Informal or “Common Law” Marriage?
    • Section 2.401 of the Texas Family Code provides two ways to establish an informal marriage:
      1. A man and woman may prove an informal marriage by evidence that a declaration of their informal marriage has been signed (check with your local County Clerk to obtain this form); or,

      2. A man and woman may prove an informal marriage by establishing that they:

        • agreed to be married;
        • lived together in Texas as husband and wife after that agreement; and,
        • represented to others that they were married
  • If I am common-law married, do I have any less rights than someone who had a marriage ceremony?
    • No. In Texas, parties to an informal marriage are for all legal purposes married. In fact, the proper proceeding for dissolution of an informal marriage is a full-fledged divorce.


Community Property / Separate Property

  • When is property Separate Property and what does this mean?
    • Separate property is property of one spouse, and not the other. Section 3.001 of the Texas Family Code defines a spouse’s separate property as the property owned or claimed by the spouse before marriage; the property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

  • When is property Community Property and what does this mean?
    • Community property is property of “the marriage” and is therefore at the use and enjoyment of either spouse. Section 3.002 of the Texas Family Code defines community property as property, other than separate property, acquired by either spouse during marriage. Texas law provides that income from separate property during the marriage is community property.

  • What is the significance of classifying “Separate” vs. “Community” Property?
    • Section 3.003 of the Texas Family Code provides that on the dissolution of marriage (i.e., the marriage has ended either due to divorce or the death of one spouse), property possessed by either spouse is presumed to be community property. Without clear and convincing evidence to the contrary, which is the highest standard of proof in a Texas civil case, this means that the law automatically presumes property belongs to both spouses. This classification can often lead to serious issues, such as when one spouse owns a business formed during marriage, or where one spouse dies and attempts to give property through their will to someone other than the surviving spouse. Meticulous planning, documentation, and expert business evaluation can help, but this can often be a frustrating and expensive process.


Custody Issues

  • What is “conservatorship”?
    • In Texas, we call custody “conservatorship”. Generally, we use the word conservatorship to refer to the legal rights and responsibilities of a parent. A judge may give conservatorship to one or both parents. The two types of conservatorship are sole managing conservatorship (“SMC”) and joint managing conservatorship (“JMC”). If you are awarded SMC, this means that you are the only parent with the legal right to make certain decisions concerning your child. If you are awarded JMC, this means that the rights and duties of a parent are shared by both parties. In the event of JMC, certain rights (i.e., the decision to decide the primary residence of the child) may still be given to only one of the parties.

  • What sort of factors are looked at to determine conservatorship?
    • In Texas, there is a rebuttable presumption that awarding the parents JMC is in the best interest of the child(ren). The ultimate issue to be determined by the court is what is in the “best interest of the child”. In determining what is in the best interest of the child, the court considers the following factors:

      1. whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;

      2. the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

      3. whether each parent can encourage and accept a positive relationship between the child and the other parent;

      4. whether both parents participated in child rearing before the filing of the suit;

      5. the geographical proximity of the parents’ residences;

      6. if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and,

      7. any other relevant factor.


Divorce / Division of Marital Estate

  • If I want to get a divorce in Texas, what are the first things I need to know?
    • The first requirement for a divorce is a legal ground. Basically, this means you need a reason recognized by the law to get divorced. Chapter 6 of the Texas Family Code provides seven (7) grounds for divorce:

      1. Insupportability – Section 6.001 of the Family Code allows the court to grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. This is the only ground that is not considered “fault-based”.

      2. Cruelty – Section 6.002 of the Family Code allows the court to grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment towards the complaining spouse of a nature that renders further living together insupportable.

      3. Adultery – Section 6.003 of the Family Code allows the court to grant a divorce in favor of one spouse if the other spouse has committed adultery.

      4. Conviction of Felony – Section 6.004 of the Family Code allows the court to grant a divorce in favor of one spouse if during the marriage the other spouse has been convicted of a felony, has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state; and, if the spouse has not been pardoned. The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse

      5. Abandonment – Section 6.005 of the Family Code allows the court to grant a divorce in favor of one spouse if the other spouse left the complaining spouse with the intention of abandonment, and, remained away for at least one year.

      6. Living Apart – Section 6.006 allows the court to grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three (3) years.

      7. Confinement in Mental Hospital – Section 6.007 of the Family Code allows the court to grant a divorce in favor of one spouse if at the time the suit is filed the other spouse has been confined in a state mental hospital or private mental hospital in Texas or another state for at least the last three years, and, it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

    • The second requirement to get a divorce means making sure that certain residency rules are met. Basically, if you want a divorce in Texas you must show you are a resident of the State and the County where you wish to file. Section 6.301 of the Family Code provides the general residency requirement in a divorce suit. One spouse to the marriage must show the court that they have been living in the State of Texas for the preceding six-month period, and that they have been a resident in the county where the divorce suit is filed for the preceding 90-day period. Residency is defined by a physical presence in the county along with the intention to remain and permanently and definitely make that county one’s home.

    • The third requirement, assuming the first two are satisfied, is to file divorce papers. Contact your local district clerk’s office to review costs and local rules on filing for divorce. Note that in a divorce there are a number of issues that potentially may effect your finances and custodial rights to children. Therefore, although this section provides a basic list of requirements for getting a divorce, nothing herein should not be considered a substitute for consultation with a family law professional.

  • What is the difference between a contested and uncontested divorce?
    • Divorce suits deal with a number of issues that inevitably spouses are going to agree or disagree on. In any divorce (with or without children), spousal maintenance and division of property are at issue. In divorces with children, child support, custody, visitation and conservatorship are also at issue. If the parties can agree on all of these issues without the need for court intervention, then the divorce is referred to as an uncontested divorce. If the parties cannot agree on one or more of the above issues, then the divorce will require multiple court appearances and is referred to as a contested divorce. A contested divorce requires the court’s involvement to determine the issues above and overall is a more difficult process for the parties.


Enforcements

  • What is an enforcement?
    • In family law, enforcement refers to the process by which we enforce the terms of an existing agreement between the parties when one party is not doing what they have agreed to do or when one party fails to do something that has been ordered by the court. Typically enforcements involve beginning a new lawsuit, because an enforcement is generally requesting that the court ensure that an agreement which has already been litigated be upheld.

  • What are your remedies through enforcing?
    • The answer to this question depends on the nature of the case. Although most enforcements are petitioning the court to hold the party who is in breach of the contract in contempt (which can translate to fines or possibly jail time), there are a number of limitations on relief depending on what it is that is sought to be enforced. For more information, review Chapter 157 of the Texas Family Code or contact a family law professional.


Mediation

  • Do you have to go through the mediation process?
    • The answer to this question depends on the courts in your county. For example, the district courts in Harris and Montgomery Counties tend to mandate mediation, whereas in Tarrant County mediation is not required.

  • Why might mediation be a good thing?
    • Many people become bitter and stand-offish when informed that their county mandates mediation prior to certain court proceedings. However, if mediation is required in your county, there are positive aspects of mediation you should consider:

      • First, the mediation process involves only you and your attorney, as well as a third-party neutral who will attempt to help you and the party on the opposite side come to an agreement. As many people can be at odds when they reach mediation, having a good mediator can often assist you in cooling off from personal tension and ultimately reaching an agreement with the opposing party. Often times parties who did not anticipate settling at mediation will do so with the assistance of a skilled mediator.

      • Second, Texas law tends to favor parties that can agree without need of court intervention. If you can put aside the emotional baggage you carry with you at mediation, there is a very good chance that you will reach an even more favorable agreement than would be possible if the court were deciding the same issues.

      • Finally, the mediation process can save you a tremendous amount of money if settlement is achieved. Litigating issues at trial is very expensive and takes a great deal of preparation. A successful settlement can help you avoid trial preparation fees.


Modifications

  • What is a modification?
    • Modification is the process whereby one party to an existing family law order is requesting that it be amended. Modifications to prior orders are very common, because the circumstances of the parties or the children who are subject to the order often change.

  • When can you request a modification?
    • Chapter 156 of the Texas Family Code deals with modification. Generally, to modify a prior order, the law requires that there has been (1) a material and substantial change in circumstance for either a party or a child since the last order; and, (2) the requested modification would be in the best interest of the child. Some common reasons for modification are: remarriage of one or both parties to the prior order; desire to relocate the child when a geographical restriction was set forth in the prior order; or, change of employment of one or both parties. Certain types of modifications can be heard before a jury, while other types cannot.

  • When can I ask that child support be modified?
    • When since the rendition of a prior order (1) the circumstances of the child or a person affected by the order have materially and substantially changed; or, (2) three years have passed since the last modification to the prior order and the amount of monthly support awarded under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the child support guidelines.


Partition Agreements

  • What is a partition agreement?
    • Section 4.102 of the Texas Family Code allows for partition agreements. Partition agreements are contracts between spouses to exchange between themselves all or part of their community property, then existing or to be acquired. Essentially, this means that the spouses are agreeing to make what would be classified as community property (property of the marriage) the separate property of a particular spouse. The ability of the spouses to contract in this way between themselves makes the partition agreement similar to a premarital agreement.


Pre Marital Agreements / Prenuptial Agreements

  • What sort of issues can be handled by a pre-marital agreement and what sort of issues cannot?
    • Under the Texas Family Code, Section 4.003(a), the parties to a premarital agreement may contract with respect to:
      1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
      2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
      3. The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
      4. The modification or elimination of spousal support;
      5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
      6. The ownership rights in and disposition of the death benefit from a life insurance policy;
      7. The choice of law governing the construction of the agreement; and,
      8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
    • The only limitation provided by the Family Code under 4.003 is pursuant to subsection (b), which reads: “The right of a child to support may not be adversely affected by a premarital agreement.”

  • What are some of the reasons to consider a premarital agreement?
    • Despite how unpopular premarital agreements are, there are a lot of legitimate reasons to consider whether a premarital agreement is right for you. If you have children from a previous marriage, run your own business, or have certain assets that you want to make sure are held in your name separate from your spouses (for inheritance purpose or otherwise) then a premarital agreement can benefit you.

  • When does a premarital agreement become effective?
    • Section 4.004 of the Texas Family Code provides that premarital agreements only become effective on marriage.
  • When can a premarital agreement be amended?
    • Section 4.005 of the Texas Family Code provides that premarital agreements can only be amended or revoked by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
  • When is a premarital agreement unenforceable?
    1. If you can prove that the party did not sign the agreement voluntarily; or,
    2. The agreement was unconscionable when it was signed and, before signing the agreement, that party:
      • was not provided a fair and reasonable disclosure of the property of financial obligations of the other party;
      • did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
      • did not have, or reasonable could not have had, adequate knowledge of the property or financial obligations of the other party


Protective Orders and Family Violence

  • If I have been the victim of family or dating violence, what can I do?
    • Family violence is a serious issue. In Texas, victims of family violence are entitled the maximum protection of our laws. If you are a victim of family violence, you should immediately request a protective order from the court.

  • What are the different types of protective orders?
    1. A temporary ex parte protective order is a protective order designed to provide you with immediate relief from the person engaged in family violence. Generally, a temporary ex parte protective order lasts twenty (20) days and can be extended another twenty (20) days from the time it expires if requested by the victim of family violence, or if the court decides to extend it on its own.

    2. A permanent protective order is an order that is designed to provide you with a extended relief from the person engaged in family violence. Generally, a permanent protective order can provide you with up to two (2) years of relief. In certain circumstances the duration of the permanent protective order can be extended beyond the initial two (2) years.

    3. A magistrate’s order for emergency protection (the “emergency protective order”) is a protective order that can be issued by a criminal court when the person engaged in family violence is arrested for family violence, sexual assault, or stalking. This is a different type of protective order which is usually good for 31-61 days. In the event of assault with a deadly weapon, the order is good for 61-91 days. If the crime involved serious injury or use of a deadly weapon, the judge generally will issue an emergency protective order regardless of whether or not one is requested

  • What can a protective order do to help me?
    • Section 85.022 of the Texas Family Code provides that the court may prohibit a person found to to have committed family violence from:
      1. committing further acts of family violence;

      2. communicating directly with a person protected by an order or a member of the family or household of a person protected by an order, in a threatening or harassing manner;

      3. communicating a threat through any person to a person protected by an order or a member of the family or household of a person protected by an order;

      4. if the court finds good cause, then from communicating in any manner with a person protected by an order or a member of hte family or household of a person protected by an order, except through the party’s attorney or a person appointed by the court;

      5. going to or near the residence or place of employment or business of a person protected by an order or a member of the family or household of a person protected by an order;

      6. going to or near the residence, child-care facility, or school a child protected under the order normally attends or in which the child normally resides;

      7. engaging in conduct directed specifically toward a person who is a person protected by an order or a member of the family or household of a person protected by an order, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person;

      8. possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision; and,

      9. harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code, that is possessed by or is in the actual or constructive care of a person protected by an order or by a member of the family or household of a person protected by an order


Terminations

  • What is a termination?
    • Termination lawsuits are those where one party either voluntarily or involuntarily is faced with relinquishing his or her rights to a child or children. Courts are very reluctant to terminate a party’s parental rights and the grounds for termination are quite stringent. In other words, a parent generally will not lose their rights absent clear and convincing evidence of egregious wrongdoing.

  • What are some of the grounds for involuntary termination of parental rights?
    • The list below is to give you a general idea of the grounds for a termination in Texas. For more information, review Section 161.001 of the Texas Family Code. Generally, it provides that a court may order termination of the parent-child relationship if it finds by clear and convincing evidence:

      1. Abandonment – that there is some form of abandonment by a parent for a specified period of time where the parent indicates that he or she will not return or fails to provide support for the child;

      2. Endangerment – that either by the parent’s actions directly the child is endangered, or by virtue of the parent’s indirect actions which place the child into a dangerous environment;

      3. Failure to Support – that a parent failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition for termination;

      4. Delinquency – that a parent has been the major cause of the failure of the child to be enrolled in school, or that the parent has been a major cause of the child’s absence from the child’s home without the consent of the parents or guardian for a substantial length of time or without the intent to return;

      5. Criminal Offenses – that a parent has been convicted or has been placed on community supervision for being criminally responsible for certain crimes enumerated under Section 161.001.