You are in the middle of a divorce in Kaufman County or you are thinking about divorce.  However, you are concerned because you would not be able to financially support yourself without your spouse’s income.  So, you call your forney divorce lawyer at Guest & Gray, P.C. and discuss your options.  Your attorney will advise you that for a divorce in Texas, while we are not an alimony state per se, there are still two forms of support that one could receive.

While the case is pending, you can request temporary spousal support if you cannot meet your minimum reasonable needs while the case is pending.  If this request is made, you should be prepared to have a list of all of your necessary expenses and the income, if any, that you personally have coming in to cover those expenses.  It is also helpful if you know your spouse’s monthly income and any expenses that he/she might have as a result of the separation and pending divorce.  Often times, the Court will do a comparison between the parties’ expenses and income and if the requesting spouse has a true need and there is enough income for all of the expenses, then the Court will award the requesting spouse the necessary funds to cover the expenses.  Or, in some circumstances, you may request that the Court award you exclusive use of the residence.  Along with that request, you will incur all of the expenses of the home, including any mortgage.  So, you may request that the Court order that your spouse pay the necessary expenses associated with the home.

The second form of support is spousal maintenance and this is ordered at the conclusion of the case and is also known as post-divorce spousal support.  Spousal maintenance is defined in Chapter 8 of the Texas Family Code and can be difficult to obtain due to certain statutory hurdles that one must overcome.  In fact, there is a presumption against spousal maintenance.  However, it is a rebuttable presumption so that spousal maintenance can be awarded if the requesting spouse has exercised diligence in earning sufficient income to provide for the spouse’s minimum reasonable needs or has developed or is developing the reasonable necessary skills to provide for the spouse’s minimum reasonable needs.  This does not mean that obtaining spousal maintenance will be easy.  In fact, there are requirements that must be met before the Court can consider the award of spousal maintenance.

For eligibility of spousal maintenance, you must prove that you will lack sufficient property (including your separate property or any community property/assets awarded to you) after the divorce is finalized to provide for your minimum basic needs.  This means the Court will take inventory of everything you are awarded in the divorce and if you still cannot provide for your minimum basic needs, you overcome the first step.  The most common second question is whether you and your spouse have been married for at least 10 years or longer.  If you do not meet the duration of marriage requirement, there are other factors that might create eligibility.  For instance, if the nonrequesting spouse has been convicted of an act of family violence (as defined in Texas Family Code Section 71.004) against you or your child within 2 years of filing for divorce or while the case is pending then you can be eligible for spousal maintenance.  Also, if you have a mental or physical disability that prevents you from earning sufficient income to meet your minimum basic needs, then you will be eligible.  Finally, if you are the custodian of a child of the marriage who is mentally or physically disabled and this prevents you from earning sufficient income to meet your minimum basic needs then you will be eligible for spousal maintenance.

Once you have accomplished eligibility, this still does not guarantee that the Court will award you spousal maintenance.  As with all family law cases, it is still a case-by-case basis and there are several factors for a court to consider when determining whether or not to award spousal maintenance.  As you can imagine, the factors are more scrutinizing towards the requesting spouse.  First, as stated before, the Court will look at your ability alone to provide for your minimum reasonable needs (looking at all of your sources of income, including property awarded).   Another important factor is your education and employment skills.  In fact, the Court will consider how many jobs you have had, whether you are in college (developing skills), whether you have been seeking income sufficient to meet your needs, etc.

Once you overcome all of these steps or requirements and the Court awards you spousal maintenance, then the Court must determine duration and amount of spousal maintenance.  Duration is dependent upon the factors discussed in eligibility—length of marriage, disability of spouse or of child cared for by spouse, or any other compelling impediment.  For example, if you have been married for 10-19 years, then the legislature allows for spousal maintenance for a maximum of 5 years.  However, this is a maximum period as the legislature requires that the duration be limited to the shortest reasonable period required for you (the requesting spouse) to be able to earn sufficient income to provide for your minimum reasonable needs.  The amount of maintenance is the lessor of $5,000.00 monthly OR 20% of the providing spouse’s monthly gross income.  Even given this statutory calculation, you must also consider if the spouse will be paying any child support.

Thus, spousal maintenance, even though it has progressed quite a bit with the passage of the new statutes in 2011, it is still difficult to obtain given the lack of definitions in the Texas Family Code and the requirements that a requesting spouse must meet.

Things become difficult, however, when the respondent to the divorce is not a resident of Texas.  If the petitioner meets the Texas jurisdictional requirements, and the respondent is out-of-state, then Texas must have personal jurisdiction or long-arm jurisdiction over the respondent in order to grant the divorce and divide property and determine child custody issues.  In fact, Texas courts may exercise personal jurisdiction (long-arm jurisdiction) over nonresidents of Texas if (1) Texas was the last marital residence of the respondent; and (2) the suit is filed within two years after the residency of Texas ceased.  If the case involves child custody, child support, and other matters affecting the parent-child relationship, Texas Family Code Section 102.11 provides a list of circumstances in which the Texas court could have personal jurisdiction over the nonresident parent.  Finally, a Texas court can also exercise personal jurisdiction over a nonresident of Texas if that nonresident has “minimum contacts” with that state.  Meaning, that person must have some business here.  For example, that person has a company here or has engaged in transactions in the state and has submitted themselves to Texas jurisdiction.

If the above three forms of obtaining personal jurisdiction are not met, then a Texas court cannot exercise personal jurisdiction over the nonresident.  Thus, if one files suit in the state of Texas because they meet the jurisdictional requirements the case can still be dismissed for lack of jurisdiction.  This occurs if the nonresident challenges the court’s personal jurisdiction over them by filing a special appearance.  This must be the first pleading filed or filed concurrently with an answer or counterpetition.  If the nonresident fails to file a special appearance and merely files an answer, then that person has submitted themselves to the court’s jurisdiction and has procedurally lost the right to challenge it.

Social studies are governed by Texas Family Code Chapter 107, Subchapter D.  Judges in Kaufman County (including Forney, Terrell, Scurry, Kaufman, etc) require social studies in contested cases involving children before a final hearing can be held.  The main reason for this is because the social worker becomes the eyes and ears for the court.  The judge cannot visit each party’s home and speak with everyone individually.  Thus, the Court needs someone who can do that for them and make a recommendation on that person’s findings for what is best for the child.  There are several reasons why a social study is utilized:  1)  parents cannot agree upon where the child should live; 2) the neighborhood is not ideal for a child; 3) the occupants of the home; 4) parents with criminal histories; 5) cases in which there are CPS involvement; 6) the condition of the home (e.g. hoarding); or 7) the children themselves have expressed concerns.

A social study is either requested by a party and then ordered by the Court, or the Court may appoint a social worker on its own volition.  Sometimes, it is best to agree to a social study when you know you must participate in one anyway because you can then agree upon a social worker rather than leaving it to chance.

Each party typically pays their own costs for the social study.  Once you have paid your portion of the fees, the social worker will visit you in your home, with all of the occupants present, and most importantly, your child must be present.  The social worker will visit with each person individually, including the child.  As well, the social worker will conduct a background check on all of the occupants (e.g. criminal history and/or Child Protective Services involvement) and will inquire as to medical histories (e.g. medications or mental illnesses).

Once the social worker has completed his/her investigation, they will then produce a social study report to both sides and the Court.  This report will gauge on how the case will proceed–whether you would want a final hearing or seek some form of settlement such as mediation.

Social studies can be extensive and overwhelming.  Contact your Forney family law attorney at Guest & Gray, P.C. to discuss social studies, and your case, in more depth.

Your local Forney family law attorney will file a motion for enforcement on your behalf.  In doing so, the attorney can request that the court set the amount of arrearages and order the obligor to start paying on that arrearage in addition to the current amount of support that they are obligated to pay.  This means, if granted, that an additional amount would then be taken out of the obligor’s check until that arrearage is satisfied.

Your attorney can also ask that the obligor be placed in the county jail and/or fined for their failure to pay child support.   Also, there are additional forms of relief that can be sought.  It truly depends upon the circumstances and what would be most effective.  The most important thing, however, is that you need the money that is owed to your child.

If you have a case in which the obligor parent has an outstanding amount in child support, do not let another day go by without consulting with your Forney family law attorney at Guest & Gray.

This is an ex parte order which your Forney family law attorney files on your behalf and attaches an affidavit stating, in your own words, such things as the other parent is consuming controlled substances, has a criminal history, etc.   In doing so, your attorney will request from the judge that the other parent not be allowed to possess or see the child for the time being.  If your affidavit is sufficient (it is a case-by-case determination in which the judge decides if the child will suffer immediate and irreparable harm), then the judge will grant the request and issue a temporary restraining order.  Within that document, the judge will set a hearing within fourteen (14) days to hear from both sides.  At the hearing, the judge will determine whether the temporary restraining order should continue or whether the parent should have some sort of lesser visitation than standard such as supervised.

Temporary restraining orders should not be taken lightly, no matter which side you are currently on.  If you are facing this particular issue, contact your Forney family attorney at Guest & Gray today.

1)  How do I get my divorce started:  If you do not have a pending case, you will file an Original Petition for Divorce and you typically must have the other party served with this document, along with any notices of hearing.  If the other party is in agreement, after the petition is filed, you can subsequently file a Waiver of Service on their behalf.  If a case is already pending, you will need to file an Answer and possibly a Counterpetition for Divorce if you want to request any additional relief from the court.

2)  What happens next:  The case is typically set for a Temporary Orders hearing so that the judge can make interim temporary orders in the case on such issues as who is going to stay in the home, who is going to pay the mortgage on the home, child support, child visitation, etc.

3)  What happens after the Temporary Orders hearing:  If your Forney Divorce Lawyer has not already done so, she will send what is known as discovery.  There are 4 main types of written discovery–Request for Disclosure, Request for Production, Interrogatories and Request for Admissions.   Your Forney Divorce Lawyer may choose to either send a couple of these or all four, it is truly determined on a case-by-case basis.  Essentially, these discovery tools allow your Forney Divorce Lawyer to do just that–discover the other side’s case and see what evidence, if any, they have to support their claims.

4)  How long do I have to wait before my case is finalized:  The waiting period for a divorce in Texas is 60 days, so you must at least wait this long before your case is finalized.  After a temporary orders hearing, you are able to gauge how things are going.  If you are unopposed to continuing the temporary orders, or just need a few changes, then it is not unlikely that your Forney Divorce Lawyer will try to work out some final orders to this effect.  If you are unhappy with the temporary orders, then you must have a final hearing to finalize your case.  Before you can have a final hearing, all divorce parties in Forney and the surrounding areas must first submit to a social study and/or mediation.

These are just a few of the main concerns that people have when going through a divorce.  Contact your local Forney Divorce Lawyer at Guest & Gray, P.C. today to set up a consult for your divorce and discuss any further questions or concerns that you may have.

How much is a consultation? Guest and Gray is currently offering free family law consultations.

What to bring? Your family lawyer needs to know your financial situation. Debts, assets, liabilities, retirements, credit cards, student loans, mortgage payments, car  loans, tax returns are all important. You should bring as much financial information as possible to your first visit. Your Forney divorce lawyer will need to help you plan financially for the divorce process.  Together we will need to plan for how you can pay your bills during and after the divorce process.

What else? Any police or CPS records. If your spouse has been convicted it’s important to know the case number and location (county) of the criminal case. If you have emails or text messages you think are important bring those. Social media pages (Facebook etc) are often useful in divorce litigation, especially if we are pleading a fault divorce (adultery, cruelty etc). You should not access any computer files without permission. Don’t hack into a computer to take information. Just bring what is available.

Who is going to pay for the house during the divorce? The court can make either party, or both parties pay the mortgage and expenses (utilities etc) during the divorce process. That means that the party not living in the house, may still be responsible for paying for the marital home in addition to child support.

What about child support? When will that start? The first hearing is most divorce cases is the temporary orders hearing. At that time child support is usually ordered, or agreed to.

At Guest and Gray we are proud to serve the great Forney area including Kaufman, Terrell, Mesquite, Kemp, Mabank and Scurry-Rosser. Our attorney have decades of experience in Kaufman County including two former Kaufman County District Attorneys and two past Presidents of the Kaufman County Bar Association. We have the local experience you need to get the best result.