THOMAS A. MARTIN
Attorney-at-Law
Attorney-at-Law
FAMILY LAW DETAILS
CHILD CONSERVATORSHIP/CUSTODY
The public policy of Texas is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the "best interest" of the child, provide a safe, stable, and non-violent environment for the child, and encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. A court may not render an order that conditions the right of a parent to possession of or access to the child on the payment of child support. The "best interest" of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. The court does not consider the gender of the parties in determining the terms and conditions of conservatorship and possession of and access to the child.
The court may appoint one person as "sole managing conservator" or appoint both parents as "joint managing conservators." A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency. If a child is 10 years of age or older, the child may, by a writing filed with the court, choose the managing conservator subject to the approval of the court.
Refer to the Texas Family Code §153.132 for the rights and duties of a parent appoint as sole managing conservator.
If an agreement for joint managing conservatorship is filed with the court, refer to the Texas Family Code §153.133 for a listing of requirements in the agreement.
If an agreement for joint managing conservatorship is not filed with the court, refer to the Texas Family Code §153.134 for a listing of factors that the court will consider in constructing and rendering an order for joint managing conservatorship.
Possession of the children is subject to mutual written agreement by the parties, governed by the standard of best interest of the child, and subject to court review and approval. Generally speaking, the non-custodial parent will have possession of the child on the 1st, 3rd, and 5th weekends of every month, an extended summer visitation schedule, and swapping holidays with the custodial parent.
The public policy of Texas is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the "best interest" of the child, provide a safe, stable, and non-violent environment for the child, and encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. A court may not render an order that conditions the right of a parent to possession of or access to the child on the payment of child support. The "best interest" of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. The court does not consider the gender of the parties in determining the terms and conditions of conservatorship and possession of and access to the child.
The court may appoint one person as "sole managing conservator" or appoint both parents as "joint managing conservators." A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency. If a child is 10 years of age or older, the child may, by a writing filed with the court, choose the managing conservator subject to the approval of the court.
Refer to the Texas Family Code §153.132 for the rights and duties of a parent appoint as sole managing conservator.
If an agreement for joint managing conservatorship is filed with the court, refer to the Texas Family Code §153.133 for a listing of requirements in the agreement.
If an agreement for joint managing conservatorship is not filed with the court, refer to the Texas Family Code §153.134 for a listing of factors that the court will consider in constructing and rendering an order for joint managing conservatorship.
Possession of the children is subject to mutual written agreement by the parties, governed by the standard of best interest of the child, and subject to court review and approval. Generally speaking, the non-custodial parent will have possession of the child on the 1st, 3rd, and 5th weekends of every month, an extended summer visitation schedule, and swapping holidays with the custodial parent.
CHILD SUPPORT
The amount of support ordered for the benefit of a child is determined in Texas without regard to the sex of the payor, payee, or child, or the marital status of the parents of the child. A Texas court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child.
If the paying parent's monthly "net resources" are $6,000 or less, the court generally applies the following schedule in rendering child support:
No. of Children % of Payor's Monthly Net Resources
1 20%
2 25%
3 30%
4 35%
5 40%
6+ Not less than the
amount for 5 children
Monthly "net resources" includes 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses), interest, dividends, and royalty income, self-employment income, rental income on property, all other income actually being received (including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony).
Contrarily, "net resources" do not include return of principal or capital, accounts receivable, or benefits paid in accordance with aid for families with dependent children. The court shall deduct the following items from resources to determine the "net resources" available for child support before applying the above standard guideline percentage figure: social security taxes, federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, state income tax (if applicable), union dues, and expenses for health insurance coverage for the payor's child.
It is clear that 100% of all wage and salary income includes overtime pay. Obviously, whether pay is regular or overtime, variances in amount may exist from paycheck to paycheck. Considering the past year of employment often will yield a more accurate profile than considering the last one or two paychecks.
The amount of support ordered for the benefit of a child is determined in Texas without regard to the sex of the payor, payee, or child, or the marital status of the parents of the child. A Texas court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child.
If the paying parent's monthly "net resources" are $6,000 or less, the court generally applies the following schedule in rendering child support:
No. of Children % of Payor's Monthly Net Resources
1 20%
2 25%
3 30%
4 35%
5 40%
6+ Not less than the
amount for 5 children
Monthly "net resources" includes 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses), interest, dividends, and royalty income, self-employment income, rental income on property, all other income actually being received (including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony).
Contrarily, "net resources" do not include return of principal or capital, accounts receivable, or benefits paid in accordance with aid for families with dependent children. The court shall deduct the following items from resources to determine the "net resources" available for child support before applying the above standard guideline percentage figure: social security taxes, federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, state income tax (if applicable), union dues, and expenses for health insurance coverage for the payor's child.
It is clear that 100% of all wage and salary income includes overtime pay. Obviously, whether pay is regular or overtime, variances in amount may exist from paycheck to paycheck. Considering the past year of employment often will yield a more accurate profile than considering the last one or two paychecks.
COMMUNITY PROPERTY V. SEPARATE PROPERTY
Separate property consists of the property owned or claimed by a spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent (generally, inheritance), and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Community property consists of the property, other than separate property, acquired by either spouse during marriage. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.
The degree of proof necessary to establish that property is separate property is "clear and convincing evidence" (as opposed to preponderance of the evidence or proof beyond a reasonable doubt). If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.
Separate property consists of the property owned or claimed by a spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent (generally, inheritance), and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Community property consists of the property, other than separate property, acquired by either spouse during marriage. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.
The degree of proof necessary to establish that property is separate property is "clear and convincing evidence" (as opposed to preponderance of the evidence or proof beyond a reasonable doubt). If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.
DIVORCE
Texas is a "no fault" state for divorce. The court may 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. The court may not grant a divorce before the 60th day after the date the divorce suit was filed. The court may grant a divorce in favor or one spouse if the other spouse: is guilty of cruel treatment toward the complaining spouse; has committed adultery; has been convicted of a felony and imprisoned for at least one year without pardon; abandoned the complaining spouse and been away for at least one year; has lived apart without cohabitation for at least three years; and, been confined in a mental hospital for three years and the hospitalized spouse's mental disorder is of such a degree that adjustment is unlikely and, if adjustment occurs, a relapse is probable.
Texas is a "no fault" state for divorce. The court may 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. The court may not grant a divorce before the 60th day after the date the divorce suit was filed. The court may grant a divorce in favor or one spouse if the other spouse: is guilty of cruel treatment toward the complaining spouse; has committed adultery; has been convicted of a felony and imprisoned for at least one year without pardon; abandoned the complaining spouse and been away for at least one year; has lived apart without cohabitation for at least three years; and, been confined in a mental hospital for three years and the hospitalized spouse's mental disorder is of such a degree that adjustment is unlikely and, if adjustment occurs, a relapse is probable.
DOMESTIC VIOLENCE
As a family law and criminal defense firm, the Law Office of Thomas A. Martin knows how emotionally-confusing, frustrating, and dangerous domestic violence can be. Family disputes have, unfortunately, become all too common and tension at home can inexcusably lead to outbursts of violence. If you or a loved is suffering from domestic violence, let our family law practice handle your legal needs while we work to stop the violence and protect you and your family.
Protect yourself with restraining order. Domestic violence laws protect the rights of individuals threatened or abused by spouses, former spouses, family members, or individuals related by "affinity" - a removed family relationship such as unrelated, unwed parents of a child.
Depending on the type of abuse involved, the victim of domestic violence can file a criminal or civil charge against their attacker, or file for a temporary or permanent protective order to:
-Stop communication with the victim
-Keep the abuser from the proximity of the victim
-Require the abuser to undergo treatment and counseling
-Deal with matters of child custody, support, and visitation
-Prohibit the abuser from leaving with the victim's child
-Grant the victim exclusive residence of any shared property
Failure to properly respect a court issued order of protection results in mandatory arrest of the person who it is issued against. It is an effective method to stop domestic violence before it starts, but the process for convincing a court to grant one can be complex and difficult. Because the subject of the restraining order can be put under mandatory arrest, the courts require specific evidence for most criminal restraining orders relating to domestic abuse.
Protect yourself by contacting us TODAY! We can assist you in developing a legal strategy specifically tailored to your personal circumstances and legal needs. Our professional, understanding, and caring help can assist you to leave the bonds of an abusive relationship.
As a family law and criminal defense firm, the Law Office of Thomas A. Martin knows how emotionally-confusing, frustrating, and dangerous domestic violence can be. Family disputes have, unfortunately, become all too common and tension at home can inexcusably lead to outbursts of violence. If you or a loved is suffering from domestic violence, let our family law practice handle your legal needs while we work to stop the violence and protect you and your family.
Protect yourself with restraining order. Domestic violence laws protect the rights of individuals threatened or abused by spouses, former spouses, family members, or individuals related by "affinity" - a removed family relationship such as unrelated, unwed parents of a child.
Depending on the type of abuse involved, the victim of domestic violence can file a criminal or civil charge against their attacker, or file for a temporary or permanent protective order to:
-Stop communication with the victim
-Keep the abuser from the proximity of the victim
-Require the abuser to undergo treatment and counseling
-Deal with matters of child custody, support, and visitation
-Prohibit the abuser from leaving with the victim's child
-Grant the victim exclusive residence of any shared property
Failure to properly respect a court issued order of protection results in mandatory arrest of the person who it is issued against. It is an effective method to stop domestic violence before it starts, but the process for convincing a court to grant one can be complex and difficult. Because the subject of the restraining order can be put under mandatory arrest, the courts require specific evidence for most criminal restraining orders relating to domestic abuse.
Protect yourself by contacting us TODAY! We can assist you in developing a legal strategy specifically tailored to your personal circumstances and legal needs. Our professional, understanding, and caring help can assist you to leave the bonds of an abusive relationship.
GRANDPARENT'S RIGHTS
The scope of grandparental visitation in Texas is relatively narrow, with access strictly circumscribed to specific situations.
Most importantly, a grandparent has no right to intervene into an intact nuclear family over the opposition of the biological mother and father.
Family autonomy is supreme in that context. However, once the family unit is disturbed, whether by death, divorce, incarceration, or termination of one parent's rights, the grandparent may seek visitation.
If the parents are deceased, the grandparents may be considered for appointment as managing conservators, but consideration does not alter or diminish the discretionary power of the court.
The scope of grandparental visitation in Texas is relatively narrow, with access strictly circumscribed to specific situations.
Most importantly, a grandparent has no right to intervene into an intact nuclear family over the opposition of the biological mother and father.
Family autonomy is supreme in that context. However, once the family unit is disturbed, whether by death, divorce, incarceration, or termination of one parent's rights, the grandparent may seek visitation.
If the parents are deceased, the grandparents may be considered for appointment as managing conservators, but consideration does not alter or diminish the discretionary power of the court.
INFORMAL MARRIAGE
Many people talk about "common law" marriages in Texas. While it is true that two people (a man and woman, as Texas does not recognize marriages between persons of the same gender) can be married without benefit of clergy or the justice of the peace, the legal name for this type of marriage is an "informal marriage."
There are three requirements to be legally married through an informal marriage:
-The man and woman agree to be married;
-After the agreement they lived together in Texas as husband and wife;
-In Texas, represented to others that they were married.
Many people talk about "common law" marriages in Texas. While it is true that two people (a man and woman, as Texas does not recognize marriages between persons of the same gender) can be married without benefit of clergy or the justice of the peace, the legal name for this type of marriage is an "informal marriage."
There are three requirements to be legally married through an informal marriage:
-The man and woman agree to be married;
-After the agreement they lived together in Texas as husband and wife;
-In Texas, represented to others that they were married.
MAINTENANCE - NOT ALIMONY
Texas does not allow traditional "alimony" payments, or post divorce payments from one spouse for benefit of the other spouse.
"Maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.
With some minor exceptions, the basic requirements are that the party seeking alimony must have been married at least ten years and be unable to be self-supporting. The monthly payment is limited to no more than $2,500 or 20% of the payer's income, whichever is less.
Maintenance is generally limited to three years. However, if the former spouse is physically or mentally disabled, payments may be extended indefinitely. The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the party receiving maintenance.
Texas does not allow traditional "alimony" payments, or post divorce payments from one spouse for benefit of the other spouse.
"Maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.
With some minor exceptions, the basic requirements are that the party seeking alimony must have been married at least ten years and be unable to be self-supporting. The monthly payment is limited to no more than $2,500 or 20% of the payer's income, whichever is less.
Maintenance is generally limited to three years. However, if the former spouse is physically or mentally disabled, payments may be extended indefinitely. The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the party receiving maintenance.
MODIFICATION OF COURT ORDERS
Modification is the most discussed, controversial, and highly litigated aspect of sole and joint managing conservatorships, possessory conservatorships, and child support.
The court may modify an order that designates a sole managing conservator of a child any age if the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; and, the appointment of the new sole managing conservator would be a positive improvement for the child.
The court may modify an order that designates a sole managing conservator of a child at least 12 years of age if the child has filed with the court in writing the name of the person who is the child's choice for managing conservator, and the court finds that the appointment of the named person is in the best interest of the child. If the attempt to modify a sole managing conservatorship occurs within one year of the date of the rendition of the order, the person filing the suit must attach an affidavit showing the child's present environment may endanger the child's physical health or significantly impair the child's emotional development, that a change is in the best interest of the child, or that the previous sole managing conservator of the child has relinquished the sole managing conservatorship and the modification is in the best interest of the child.
The court may modify an order that designates a sole managing conservator if a parent of the child requests appointment as a joint managing conservator and the court finds that the circumstances of the child or the sole managing conservator have materially and substantially changed since the rendition of the order, retention of a sole managing conservatorship would be detrimental to the welfare of the child, and the appointment of the parent as a joint managing conservator would be a positive improvement for and in the best interest of the child.
The court may modify the terms and conditions of a joint conservatorship if the circumstances of the child or of one or both of the joint managing conservators have materially and substantially changed since the rendition of the order, or the order has become unworkable or inappropriate under existing circumstances, and a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child.
The court may modify an order that provides for the support of a child if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition, or it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the child support guidelines. A support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify.
Modification is the most discussed, controversial, and highly litigated aspect of sole and joint managing conservatorships, possessory conservatorships, and child support.
The court may modify an order that designates a sole managing conservator of a child any age if the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; and, the appointment of the new sole managing conservator would be a positive improvement for the child.
The court may modify an order that designates a sole managing conservator of a child at least 12 years of age if the child has filed with the court in writing the name of the person who is the child's choice for managing conservator, and the court finds that the appointment of the named person is in the best interest of the child. If the attempt to modify a sole managing conservatorship occurs within one year of the date of the rendition of the order, the person filing the suit must attach an affidavit showing the child's present environment may endanger the child's physical health or significantly impair the child's emotional development, that a change is in the best interest of the child, or that the previous sole managing conservator of the child has relinquished the sole managing conservatorship and the modification is in the best interest of the child.
The court may modify an order that designates a sole managing conservator if a parent of the child requests appointment as a joint managing conservator and the court finds that the circumstances of the child or the sole managing conservator have materially and substantially changed since the rendition of the order, retention of a sole managing conservatorship would be detrimental to the welfare of the child, and the appointment of the parent as a joint managing conservator would be a positive improvement for and in the best interest of the child.
The court may modify the terms and conditions of a joint conservatorship if the circumstances of the child or of one or both of the joint managing conservators have materially and substantially changed since the rendition of the order, or the order has become unworkable or inappropriate under existing circumstances, and a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child.
The court may modify an order that provides for the support of a child if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition, or it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the child support guidelines. A support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify.
PRENUPTIAL AGREEMENTS
A prenuptial agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage. A prenuptial agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
The parties to a prenuptial agreement may contract with respect to: 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; 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; the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; the modification or elimination of spousal support; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement; and, any other matter, including their person rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
It is important to note that the right of a child to support may not be adversely affected by a prenuptial agreement.
A prenuptial agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage. A prenuptial agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
The parties to a prenuptial agreement may contract with respect to: 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; 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; the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; the modification or elimination of spousal support; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement; and, any other matter, including their person rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
It is important to note that the right of a child to support may not be adversely affected by a prenuptial agreement.
The Law Offices of Thomas A. Martin represents clients throughout Southeast Texas, including the cities of Houston, Galveston, Memorial, River Oaks, West University,
Clear Lake, League City, Sugar Land, Pearland, Beaumont, Hempstead, Katy, Conroe, and all the communities in Brazoria, Chambers, Fort Bend,
Galveston, Grimes, Harris, Jefferson, Liberty, Matagorda, Montgomery, Polk, San Jacinto, Trinity, Walker, Waller and Wharton Counties.
Clear Lake, League City, Sugar Land, Pearland, Beaumont, Hempstead, Katy, Conroe, and all the communities in Brazoria, Chambers, Fort Bend,
Galveston, Grimes, Harris, Jefferson, Liberty, Matagorda, Montgomery, Polk, San Jacinto, Trinity, Walker, Waller and Wharton Counties.
The Law Offices of Thomas A. Martin represents individuals
facing serious felony charges in both state and federal trial
and appellate courts. We represent people facing felony
charges from drugs to murder, and have developed an
emphasis on sex crimes (both adult and child offenses).
In our commercial litigation practice, we represent small business owners facing "bet the business" litigation prospects if the opposing side wins.
With our family law practice, we cherish the opportunity to represent parents, especially fathers, who need a divorce and want to keep or get custody of their kids.
In our commercial litigation practice, we represent small business owners facing "bet the business" litigation prospects if the opposing side wins.
With our family law practice, we cherish the opportunity to represent parents, especially fathers, who need a divorce and want to keep or get custody of their kids.