Author Archives: Bryan Willis

Understanding Your Rights and Duties as a Parent During Divorce

This article provides an overview of your rights and duties as a parent both during and after your divorce. Certain rights are vested in a parent regardless of custody decisions in a divorce and others may be modified by the divorce decree. In addition, certain rights may be exercised independently, only upon agreement of the parents, or exclusively by one parent.

This article focuses on parental rights and duties. The article does not discuss how a court makes decisions regarding child custody which affect these rights and duties. For more information on custody decisions, please read General Rules for Child Custody in a Texas Divorce.

Your Rights and Duties as A Parent

Let’s start by looking at your rights and duties as a parent. These rights and duties result from the parent-child relationship and exist regardless of whether a child’s parents are married. These rights and duties are only modified by court order – such as a divorce decree.

Your rights and duties as a parent include the following:

  • the right to physical possession, to direct the moral and religious training, and to designate the residence of the child;
  • the duty of care, control, protection, and reasonable discipline of the child;
  • the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
  • the duty to manage the estate of the child, including the right to act as an agent of the child in relation to the estate;
  • the right to the services and earnings of the child;
  • the right to consent to the child’s marriage, enlistment in the military, medical and dental care, as well as psychiatric, psychological, and surgical treatment;
  • the right to represent the child in legal action and to make other decisions of legal significance concerning the child;
  • the right to receive and give receipt for payments for the support of the child and to hold and use funds for the benefit of the child;
  • the right to inherit from and through the child;
  • the right to make decisions concerning the child’s education; and
  • any other right or duty existing between a parent and child by virtue of law.

How Conservatorship and Possession Affect Your Rights as a Parent in Divorce

When parents get divorced, these rights and duties will be modified. How they are modified will depend upon the court’s determination of the issues of conservatorship (custody and management of the children) as well as possession.

For example, certain rights and duties are allowed only to the parent appointed sole managing conservator if one parent is appointed as sole managing conservator.

However, there is a presumption in favor of appointing both parents joint managing conservators. In that case, the rights and duties must be allocated by the court as you will see below.

Even if one parent is appointed sole managing conservator, the other parent will have rights to possession and access of the children and that parent will have certain rights and duties during his or her possession of the children.

So from this point forward – the rights and duties described will depend on whether the parents are appointed Sole Managing Conservator and Possessory Conservator or Joint Managing Conservators.

Having said that – parents have certain rights at all times – regardless of conservatorship or possession. So let’s look at those first.

Your Rights and Duties as a Parent at All Times During and After Divorce

These rights vest in a parent and do not go away as a result of the divorce unless specifically modified in the divorce decree. These rights and duties exist regardless of custody decisions and do not depend on whether you have possession of your children.

Unless limited by a court order, your rights as a parent at all times during and after a divorce include the right:

  1. to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
  2. to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
  3. to have access to medical, dental, psychological, and educational records of the child;
  4. to consult with a physician, dentist, or psychologist of the child;
  5. to consult with school officials concerning the child’s welfare and educational status, including school activities;
  6. to attend school activities;
  7. to be designated on the child’s records as a person to be notified in case of an emergency;
  8. to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
  9. to manage the estate of the child to the extent the estate has been created by you as parent or your family.

In addition, each parent has a duty to inform the other parent in a timely manner of any significant information affecting the health, education, or welfare of the children.

These rights and duties exist regardless of whether the parents are appointed joint managing conservators or if one parent is appointed sole managing conservator.

Allocation of Rights and Duties for Parents Appointed Joint Managing Conservators

When parents are appointed joint managing conservators, the court must decide which of the rights those parents have may be exercised independently, jointly, or exclusively.

Independently means that either parent may exercise his or her right on that issue without consulting with the other parent.

Jointly means that the parents cannot exercise their right without agreement with the other parent.

Exclusively means that one parent or the other has been given the exclusive right to make decisions on that issue. The most common example is the right to designate the primary residence of the child.

When parents are appointed joint managing conservators, the court will decide which rights and duties a sole managing conservator would have will be exercised independently, jointly, or exclusively by the parents. Those rights and duties are discussed in the next section.

Rights and Duties of A Parent Appointed Sole Managing Conservator

A parent appointed sole managing conservator has the exclusive right to make decisions concerning the children on the following issues:

  1. the right to designate the primary residence of the child;
  2. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
  3. the right to consent to psychiatric and psychological treatment;
  4. the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse those funds for the benefit of the child;
  5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
  6. the right to consent to marriage and enlistment in the military;
  7. the right to make decisions regarding the child’s education;
  8. the right to the services and earnings of the child; and
  9. the right to act as an agent of the child in relation to the child’s estate.

If the parents are appointed joint managing conservators, then the court will decide which of these rights are to be exercised independently by either parent, jointly by both parents, or exclusively by one parent.

Rights and Duties of A Parent Appointed Possessory Conservator

If one parent is appointed sole managing conservator, the other parent is presumed to be a possessory conservator. This means that even though the other parent does not have rights to make decisions concerning those items listed in the previous section, the other parent does have a right to possession and access of the children.

When the parent appointed possessory conservator has possession of the children, that parent has the following rights and duties:

  1. the duty of care, control, protection, and reasonable discipline of the children;
  2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
  3. the right to consent for the child to medical and dental care not involving an invasive procedure; and
  4. the right to direct the moral and religious training of the child.

Also remember that these rights and duties are in addition to those rights and duties a parent has at all times.

If you would like to schedule a free consultation to discuss your divorce case, then please send me an e-mail or send a request through my contact page.

General Rules for Spousal Maintenance in a Texas Divorce

This article provides an overview of the general rules that govern a spouse’s eligibility for spousal maintenance, factors affecting the award of spousal maintenance, and the amount of spousal maintenance in a Texas divorce.

No Alimony

Texas is a “no alimony” state. This is a public policy that is important to keep in mind when discussing spousal maintenance in the context of a divorce proceeding.

The key distinction between alimony and spousal maintenance is the purpose behind each. Alimony is based on the duty to support a spouse and in alimony states, that duty extends beyond termination of the marriage.

Spousal maintenance is not based on the duty to support a spouse as that duty terminates when the marriage is dissolved. The purpose of spousal maintenance is designed to help one spouse get back on his or her feet financially after a divorce.

This distinction provides the foundation for the limits and qualifications set forth below.

Qualifying for Spousal Maintenance

A court may only award spousal maintenance if the spouse seeking maintenance can establish that upon dissolution of the marriage, he or she will lack sufficient property to provide for his or her own minimum reasonable needs and that one of following four scenarios applies:

  1. The other spouse was convicted of an act of family violence against the spouse or the family’s minor children during the divorce proceeding or in the two years prior;
  2. The marriage lasted over 10 years and the spouse seeking maintenance lacks the ability to earn sufficient income to meet his or her minimum reasonable needs;
  3. The spouse seeking maintenance is unable to earn sufficient income to provide for his or her minimum reasonable needs due to an incapacitating mental or physical disability; or
  4. The spouse seeking maintenance is the custodian of a child of the marriage who requires substantial care and personal supervision because of a mental or physical disability that prevents the spouse from being able to earn an income sufficient to provide for his or her minimum reasonable needs.

Meaning of “Will Lack Sufficient Property”

This language is the first element to evaluate in determining whether or not a spouse would be eligible for spousal maintenance.

The focus of this determination is on the value and type of property the spouse owns as separate property or will receive upon dissolution of the marriage.

For example, an award of a 401k account might provide sufficient assets for a spouse to pay his or her living expenses, but a court could view the account as not liquid – meaning the spouse should not have to raid his or her retirement account to pay current living expenses.

If the spouse’s income is not sufficient to pay his or her expenses, then it is likely that the spouse will lack sufficient property.

Meaning of “Minimum Reasonable Needs”

There is no statutory definition of what constitutes “minimum reasonable needs” of a spouse. Rather, this is a fact-specific inquiry that will vary from marriage to marriage and depend heavily on a spouse’s individual income and expenses after the marriage.

If a spouse cannot earn enough income to provide for his or her expenses related to food, clothing, housing, and utilities, then the spouse likely cannot provide for his or her minimum reasonable needs.

Factors In Determining Amount of Spousal Maintenance

A court is free to consider all relevant factors when deciding upon an appropriate amount for an award of spousal maintenance.

While the legislature established the specific factors set forth below as factors that a court may consider in deciding the amount of spousal maintenance, the court is not limited to considering just these factors:

  1. each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering the spouse’s financial resources on dissolution of the marriage;
  2. the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
  3. the duration of the marriage;
  4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
  5. the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance;
  6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
  7. contribution by one spouse to the education, training, or increased earning power of the other spouse;
  8. property brought to the marriage by either spouse;
  9. contribution of a spouse as homemaker;
  10. marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
  11. any history or pattern of family violence.

Limits on Spousal Maintenance

There are several important limits on spousal maintenance including limits on duration and amounts.

For example, the amount of spousal maintenance that one spouse may be obligated to pay to another is limited to the lesser of 20% of that spouse’s gross income or $5,000.00.

Another important limit on spousal maintenance is that it may only be awarded for the shortest reasonable period time that allows the spouse seeking maintenance to provide for his or her own minimum reasonable needs.

In addition, with one exception set forth below, the maximum duration for maintenance payments is limited based upon the length of marriage. Payments for a marriage lasting 10-20 years are limited to 5 years. Spousal maintenance payments for a marriage that lasted 20-30 years are limited to 5 years. For marriages lasting more than 30 years, the payments are limited to a 10 year period.

This means that spousal maintenance payments may not exceed the maximum duration even if the spouse receiving maintenance payments is unable to provide for his or her minimum reasonable needs at the end of that period.

The one exception to the limited duration of spousal maintenance is if the spouse receiving the payments is disabled or has custody of a disabled child of the marriage.

Parties May Agree to Spousal Maintenance

It is important to remember that the statutory limits on what a court may award in the way of spousal maintenance only apply to court awarded spousal maintenance. The spouses are free to agree to any amount and any duration.

This may commonly be accomplished through a pre or post-marital agreement. In addition, one spouse may agree to spousal maintenance payments in a greater amount or for a longer duration than a court could order as part of an agreement resolving the divorce.

Distinguishing Spousal Maintenance Payments

It is important to distinguish spousal maintenance payments from other types of payments a spouse may receive as a result of the divorce.

For example, when children are involved, one spouse will usually be ordered to pay child support to the other spouse. Click here for more information on child support.

In addition, a court may order monetary payments from one spouse to another as a result of the property division in the divorce. Click here for more information on property division in a divorce.


If you would like to schedule a free consultation to discuss your divorce case, then please send me an e-mail or send a request through my contact page.

General Rules for Child Support in a Texas Divorce

This article provides an overview of the rules governing child support in a Texas divorce case. It touches on subjects such as the duty to support, calculating child support based on statutory guidelines, basis for deviating from statutory guidelines, as well as medical and dental support.

Duty To Support

By law, a parent has a duty to support his or her child with clothing, food, shelter, medical and dental care, as well as an education. This duty continues even when parents divorce.

In the context of a divorce, the duty to support a child arises when one parent is ordered to make child support payments to the other parent. One rationale for this obligation in a divorce is to make sure that the children are not exposed to unequal environments where one parent has significantly more means than the other parent.

This means that the non-primary parent must assist financially with the costs and expenses the primary parent incurs when the child lives with that parent.

In addition, parents may be ordered to provide support for an adult child if that adult child is disabled.

Termination of Child Support

A parent’s obligation to pay child support will continue until one of the following events occurs:

  1. The child reaches the age of 18 or graduates high school, whichever is later;
  2. the child is emancipated;
  3. the child marries;
  4. the child enlists in the armed forces and begins active duty;
  5. the child dies; or
  6. a court order changes or modifies the support obligation.

One thing to remember is that the death of the parent obligated to pay child support does not terminate the child support obligation. Rather, the obligation is then payable by the parent’s estate.

Statutory Guidelines for Child Support

The Texas legislature set forth statutory guidelines concerning the amount of child support a parent may be ordered to pay based on that parents net resources and the number of children entitled to support.

The guidelines provide that a parent should pay a set percentage of his or her net resources based on the number of children for whom support is owed. There is a separate statute and chart that provides percentages when the parent ordered to pay child support has existing child support obligation for children from a prior relationship.

The amount of support suggested by applying the guidelines is presumed to be reasonable and an order awarding that amount is presumed to be in the child’s best interest.

These guidelines will apply in most cases unless the court decides that application of the guidelines would be unjust or inappropriate under the circumstances.

Net Resources

The statutory percentages used to determine the amount of a parent’s child support obligations are applied to that parent’s “net resources.” Net resources are not limited to that parent’s salary.

For example, the court would first identify the parent’s gross income which includes wages and any of the following income:

  • interest, dividend, and royalty income
  • self-employment income;
  • rental income;
  • deemed income
  • severance pay;
  • spousal maintenance or alimony
  • unemployment benefits;
  • disability benefits;
  • workers’ comp benefits;
  • retirement benefits;
  • pensions;
  • interest income;
  • trust income;
  • capital gains;
  • an advance on an inheritance; and
  • gifts.

Once a court determines the parent’s gross income, the court will then deduct the following to establish the parent’s net resources:

  • social security taxes;
  • income taxes for a single person claiming one personal exemption and the standard deduction;
  • medical insurance costs for the child paid by that parent; and
  • dental insurance costs for the child paid by that parent.

An important note is that the applicable percentage in the statutory guidelines is only applied to the first $8,550 of the parent’s net resources. This is the Texas child support cap.

Note – this cap is adjusted for inflation every six years with the next scheduled adjustment coming in September, 2019.

Deviating from the Statutory Guidelines

A court may order child support in an amount that differs from the statutory guidelines if the court finds that application of the guidelines would be unjust or inappropriate under the circumstances.

Some of the factors a court might consider in determining whether application of the child support guidelines would be unjust or inappropriate under the circumstances include:

  1. the age and needs of the child;
  2. the ability of the parents to contribute to the support of the child;
  3. any financial resources available for the support of the child;
  4. the amount of time of possession of and access to a child;
  5. the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
  6. child care expenses incurred by either party in order to maintain gainful employment;
  7. whether either party has the managing conservatorship or actual physical custody of another child;
  8. the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
  9. the expenses for a son or daughter for education beyond secondary school;
  10. whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
  11. the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
  12. provision for health care insurance and payment of uninsured medical expenses;
  13. special or extraordinary educational, health care, or other expenses of the parties or of the child;
  14. the cost of travel in order to exercise possession of and access to a child;
  15. positive or negative cash flow from any real and personal property and assets, including a business and investments;
  16. debts or debt service assumed by either party; and
  17. any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Medical and Dental Insurance

One parent in the divorce will be ordered to provide medical and dental insurance for the children. Usually, this is provided through one of the parents’ employers and often times by the spouse ordered to pay child support.

In that case, the costs of the medical and dental insurance premiums are deducted from the parent’s net resources prior to applying the statutory guidelines.

If medical and dental support is provided by the parent receiving child support payments, then the amount of the child support payment may be modified to compensate for those costs.

Agreed Child Support by the Parties

As with most issues in a divorce, the parties may reach an agreement on the amount of child support a parent will pay. While the law favors and encourages parents to reach an agreement on child support, any agreement is still subject to court review to confirm that it is in the best interest of the children.

If you would like to schedule a free consultation to discuss your divorce case, then please send me an e-mail or send a request through my contact page.

General Rules of Child Custody in a Texas Divorce

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General Rules of Property Division in a Texas Divorce

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Key Child Custody Terms in Texas

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Estate Planning 101

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Four Probate Options When Someone Passes Away Without A Will

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