Types of Divorce
There are several types of divorce proceedings depending on the couple and their specific circumstances.
CONTESTED DIVORCE – A contested divorce arises when you and your spouse cannot agree on any of the issues involved. This process can be very lengthy, costly, and messy. Before deciding on this type of case, you should consider the emotional and financial impact of a long court battle not only on yourself, but also on the children.
UNCONTESTED DIVORCE – This type of divorce is typically the easiest and less expensive proceeding. Both parties are amicable and agree to all issues in the case. Sometimes it is advisable to have one attorney prepare the documents as agreed and present the agreement to the Court.
COLLABORATIVE DIVORCE – This type of divorce falls between a contested divorce and an uncontested divorce. Collaborative divorces are when the parties can agree on some of the issues. The attorneys for each party work together with the parties to come to a resolution in a private setting. This process is more expensive than an uncontested divorce, but much easier on the parties and their children.
MEDIATED DIVORCE – This type of divorce allows the parties to work through the issues with a neutral third party. A mediator is trained to assist the parties in brainstorming to resolve the issues. Once the parties mediate their differences, they can have an uncontested divorce filed to obtain a Court order if they desire.
Texas is a community property state which means the law presumes that all property acquired during the marriage belongs to both spouses. With some exceptions, the Texas Family Code states that separate property consists of: 1) property owned before the marriage, 2) property acquired by inheritance, 3) property acquired by gift, and 4) certain recoveries related to personal injury claims. All other items are classified as community property. In order to prove property is separate property, it is necessary to be able to trace the origin of the funds.
The rules on community and separate property are important. A family court can only divide community property. Having an asset in one spouse’s name alone does not make it separate property. There are various factors that may change the characterization of property, but that is the basic concept.
People often assume the court is required to divide the marital property equally between the spouses. That is not the case. The judge in a divorce case must consider all the facts to devise a “just and right” division of the assets and debts. Needless to say, what a party views as a “fair” allocation of the property may not correspond with the judge’s perspective or that of the other party. Many times the parties can agree to the division of property and debts. The court usually approves these agreements. Keep in mind, however, that if the agreement is grossly unjust, the court has a right to revise and change it.
Other Issues in Divorce
Other issues often addressed in a divorce proceeding is child custody and visitation, and child support. When minor children are involved in a divorce proceeding, it is necessary to have custody and visitation orders in place.
There are different types of custody arrangements, depending on the specific facts of each case.
SOLE MANAGING CONSERVATOR – This is the parent who is awarded primary custody.
POSSESSORY CONSERVATOR – This is the parent that has visitation rights.
JOINT MANAGING CONSERVATOR – This is when the parents are awarded joint custody.
The court may appoint joint managing conservators if the appointment is in the best interest of the child, even if the parties have not agreed to the arrangement. This does not mean and does not require equal, or nearly equal time with the child, nor does it stop a parent from having to pay child support.
If a parent is awarded sole managing conservator, that does not mean the other parent does not have visitation. The Sole Managing Conservator will have the right to make all or most of the decisions regarding the child. They can also exclude the other parent from the decision making process. The Possessory Conservator is typically the other parent.
A divorce proceeding can also address child support issues. Texas law mandates child support. The Court must approve any alternate agreements in the child support. A Judge may or may not approve the agreement. Child support is paid by the non-custodial parent to the custodial parent with whom the child lives the majority of the time.
In addition to child support, a Judge may order a party to provide medical support. Medical support can be provided by health insurance coverage or a cash payment to the custodial parent. The purpose of medical support is to help defray the cost of health insurance.
New for 2018 is also the requirement to provide dental support. Effective September 1, 2018, a Court may require a possessory parent to provide dental insurance or a dental supplement payment in addition to other support. Check out this article by Aubrey M. Connatser, PLLC to learn more about dental support and other recent changes to the Texas Family Code. These issues are not unique to marriage and divorce. Many couples are choosing not to marry and have children and property together. When those relationships end, it is still necessary to address child support and child custody and visitation.