Whether you are anticipating the joys of adoption, experiencing the pain of marital conflict or facing another legal issue close to home, the lawyers at the Tucker Law Firm, PLLC will listen to your needs, understand your concerns and help you reach solutions to your legal problems.
Divorce in Texas
Texas is what is commonly referred to as a “No Fault Divorce State”. That is, while there are several grounds on which a divorce could be granted by the courts, including cruelty, adultery, abandonment, etc., there is no need to prove any of these to get divorced. It is only necessary to prove that the marriage is “insupportable” and that there is no reasonable expectation that you and your spouse will reconcile even if the Court does not grant the divorce. Accordingly, the burden of proof to get divorced in Texas is relatively low.
The lawyers at Tucker Law Firm, PLLC can help you decide if it is in your best interest to seek a “No Fault” divorce or seek a divorce on other grounds. We have the experience, judgement, and discernment to help you make the best decision for you and your family.
Following are several of the common stages involved in every divorce case:
1. Separation- Texas does not recognize legal separation. In other words, in Texas you are married until you are divorced. However, it is common for spouses to stop living as spouses prior to the filing of the divorce petition. This could mean that they are living in separate residences or separate parts of the same home.
2. Filing of an Original Petition for Divorce - A petition is the document that starts the divorce process and is generally the first pleading that is filed in a divorce lawsuit. This document contains the names of the parties, the names and ages of any children of the marriage, a statement of the grounds for divorce as well as how the filing party believes the property should be divided. The Original Petition for Divorce also will generally ask the Court to enter Temporary Orders if that is appropriate.
3. Temporary Orders- Temporary Orders are entered by the Court to control the the parties' actions during the divorce case. Among other things, these orders dictate who will live in the marital home during the divorce case, how temporary custody of the children will work and who pays child support. As a general rule, especially if there are children involved, these orders are intended to maintain the status quo that the children’s lives are disrupted as little as possible. In Montgomery County, generally all of the Family Law Courts require the parties to attend Mediation prior to having a contested hearing on Temporary Orders.
4. Mediation- Mediation is one of several types of “Alternative Dispute Resolution” processes. It involves the participation of a neutral third party mediator whose job is to help the parties reach an agreed resolution of their disputes. It is generally considered a preferred method of resolving disputes and is particularly useful in the Family Law context because it gives both parties some control over the outcome of their case and the orders that could effect their family for years to come. Although mediation is required in most cases, the parties are not required to reach a settlement in mediation and the mediator has no decision making authority. Whether or not to settle the case is left entirely to the parties and their attorneys.
5. Discovery- Discovery is the information gathering phase of a lawsuit, including a Family Law case. This process is governed by the Texas Rules of Civil Procedure as well as the Local Rules promulgated by the Courts in many Counties, including Montgomery County, Texas. The discovery process involves the use of statutorily authorized tools consisting of Written Interrogatories, Requests for Production of Documents and Tangible Things, Requests for Disclosure, Requests for Admission and Oral Depositions. The discovery process is generally the most time consuming and expensive phase of any litigation including Family Law. The lawyers at Tucker Law Firm, PLLC are experienced in the use and utilization of all of the tools of discovery and possess knowledge of the rules that govern the discovery process. We can provide you with guidance concerning the most cost effective means of obtaining information and use of the discovery process to ensure that you have the information you need to make informed decisions about your case while at the same time containing costs that could otherwise become uncontrollable.
6. Final Trial- After the discovery process is completed and generally after a second mediation, the case may be taken to trial before a judge or jury. As a general rule the Courts in Montgomery County will issue a scheduling order that sets a trial date and deadlines for all of the required steps of the pre-trial process. Trial before a judge or jury is often the most stressful and risky part of the litigation process. The lawyers at Tucker Law Firm, PLLC have extensive trial advocacy experience in managing and trying complex cases.
7. Appeal- In the event that the trial does not result in a favorable outcome for you, then there is always the possibility that the judge or jury’s decision could be appealed to a higher court. The appellate courts in Texas that hear Family Law cases include the Court of Appeals (specifically, the 9th District Court of Appeals for Montgomery County cases) and the Supreme Court of Texas. The appellate process requires strict adherence to certain deadlines and filing requirements. We have the knowledge and experience to guide you through the appellate process.
Although the financial aspects of a divorce can be exceedingly stressful, generally the most important parts of a divorce, and of course, a child custody dispute is the welfare and best interest of the children involved.
Whether your case involves a divorce, an original suit affecting the parent child relationship ("SAPCR") or a modification of child custody, the lawyers at Tucker Law Firm, PLLC can provide compassionate, capable and realistic advice concerning the custody of your children. If you are a grandparent or other concerned adult with a recognized interest in the welfare of someone else’s children we can direct and guide you in determining the best course of action to attain your goals concerning the welfare of the children.
In Texas, the nomenclature used to describe conservatorship arrangements is admittedly confusing. Suffice it to say, that it is generally presumed that the parents of the children should have shared responsibility for the raising of their children. As a consequence, while one parent is usually given the right to designate the primary residence of the children (primary joint managing conservator) and one parent is given visitation rights and the obligation to provide child support, the major decisions concerning the child are shared between the parents.
The overriding concern and guiding principle followed by Courts in determining child custody issues is the best interest of the child. While there can be an infinite variety of child custody arrangements, the Texas Legislature has constructed a statutory scheme that is presumed to be best for the children in a child custody dispute. That scheme involves the shared rights of each parent to make significant decisions for the children and a visitation schedule commonly referred to as a Standard Possession Order.
The Standard Possession Order in Texas gives the “non primary” conservator, the right to possession and access to the children during the 1st, 3rd and 5th weekends of each month, 30 days during the summer and alternating periods of possession during recognized holidays as well as dedicated possession for mothers during Mother’s Day and father during Father’s Day. However, out of this basic statutory model, the parties and courts have the ability to customize the visitation provisions to suit the varied needs of families and children.
Many times, parents have unique work schedules that may not fit into a Standard Possession Schedule. For example, Police Officers, Firefighters, EMT's, Airline Pilots/ Flight Attendants, Oil Field employees as well as others require a more customized possession schedule to maximize their time with their children. We can help you determine and obtain a schedule that works for you.
Additionally, possession schedules that divide time equally between the parents, 50-50 possession schedules, may work for you and your family. In that case, we can help develop a schedule that accomplishes equal time.
In Texas, the non-primary parent is usually required to provide support for their child or children through the payment of child support. The Texas Family Code provides a fairly detailed and structured framework for determining what is usually referred to as “Guideline Child Support”. That is, the amount of child support that complies with the guidelines set out in the Family Code.
Unlike many othe states, Texas does not generally consider the income of the person receiving child support in determining the amount that should be paid by the non-primary parent.
The amount of child support that a person pays is based on that person’s “Net Resources”
The first step in calculating how much child support should be paid is determining the Net Resources of the obligor parent. The first step in determining Net Resources is computing that person’s Gross Income from all sources on an annual basis and then recalculating to determine the average monthly gross income. Although this sounds relatively easy, finding the total gross income of an individual can be difficult. Sometimes, people who are obligated to pay child support are not forthcoming when it comes to all of their income. We are well versed in all discovery tools that are useful in uncovering a person’s true income.
The second step in computing guideline child support is to reduce Gross Income to Net Resources by applying the deductions allowed under Chapter 154 of the Texas Family Code.
Finally, the person’s Net Resources are used to determine the amount of monthly child support they should pay under the Child Support Guidelines. This is generally a percentage of the person’s Net Resources based on the number of children who are being supported as well as any other children that the person is obligated to support. This number, Guideline Child Support, is what is presumed to be appropriate in most cases.
Although child support in most cases is consistent with the child support guidelines, there are other factors that the Court can use to deviate from the guidelines, including a child's disability, the possession schedule for each parent, the wealth of one or both parents and other factors. We can help you determine if the child support in your case should be more or less than Guideline Child Support.
Parental Termination is obviously a very harsh remedy and requires a heightened burden of proof to accomplish. In most cases involving divorce and child custody the Petitioner has the burden to prove their case by a Preponderance of the Evidence which is the easiest burden to meet. On the contrary, in a termination case, the Petitioner must prove their case by Clear and Convincing Evidence which is the second highest burden provided in the law.
A person's parental rights can be terminated for reasons including abuse, placing the child in danger, failure to support the child and other reasons. The majority of parental termination suits in Texas are initiated by Child Protective Services.
