Author Archives: Bryan Willis

General Rules of Child Custody in a Texas Divorce

This article is intended to provide a broad overview of the general rules governing child custody decisions in a Texas divorce.

I will note that the law doesn’t use the term “custody” in a Texas divorce. Instead, the law uses terms such as “conservatorship,” “possession,” and “access.”

Let’s begin by looking at the different types of conservatorship.

Types of Conservatorship in Texas

“Joint Managing Conservatorship” is the sharing of parental duties between two parties, usually the parents. When parents are appointed joint managing conservators, one parent will have the right to designate the child’s primary residence. This parent is often referred to as the primary.

“Sole Managing Conservatorship” means the parent with whom the child lives and the parent who makes most of the parenting decisions regarding the child.

A “possessory conservator” is the parent who does not have primary custody of the child but does have rights of visitation.

For more information on the various language used in a child custody issues, you can read my article on Key Child Custody Terms in Texas.

Public Policy on Child Custody

The legislature set forth specific public policies of the State of Texas when it comes to making child custody decisions. These policies provide guidance to courts when a judge makes a decision on child custody as part of a divorce proceeding.

First, it is the policy of the state to assure that children will have frequent and continuing contact with a parent who has shown the ability to act in the best interest of the child.

Second, it is the policy of the state to provide a safe, stable, and nonviolent environment for the child.

Third, it is the policy of the state to encourage parents to share in the rights and responsibilities of raising their children after parents have divorced.

Fourth, the best interest of the child is always the primary consideration in determining custody issues and I will discuss that standard further below.

Presumptions on Child Custody

In addition to the State’s public policies, there are several important legal presumptions that govern child custody issues in a divorce proceeding.

Presumptions are a type of default rule that the courts operate under in making a child custody decision. If one spouse wants a different result than the default rule would provide, then that spouse will have the burden of introducing sufficient evidence to overcome the presumption.

First, it is presumed that appointment of the parents of the child as joint managing conservators is in the best interests of the child.

Second, there is a presumption that the Standard Possession Order is in the child’s best interest and that the SPO provides a minimum schedule of possession for the parent that does not have primary custody. You can learn more about the Standard Possession Order by reading this article.

Third, one of the child’s parents must be appoint sole managing conservator (or both joint managing conservators) unless the court finds that the appointment would significantly impair the child’s physical health or emotional development. This presumption arises when a third party, such as a grandparent, intervenes seeking custody of the children.

Another presumption arises when there are multiple children. It is presumed that keeping the children together when staying with or visiting either parent is in their best interests.

Understanding the Best Interest of the Child Standard

The best interest of the child standard is at the center of every decision a court makes on child custody issues so it is important for any parent to understand what that means. Unfortunately, this is not a defined standard and courts have a large degree of discretion in determining what is in a child’s best interest.

One thing we can do is identify issues that are clearly not in the child’s best interest. For example, if a custody decision would result in impairment of the child’s physical health or emotional development then it is clearly not in the child’s best interest. A parent with a history or pattern of past or present child neglect or physical abuse may have his or her rights to possession and access limited by statute.

To help provide some parameters to the best interest of the child standard, Texas courts developed a set of factors to use in determining what is in the child’s best interest. Those factors are set forth below:

  1. The child’s wishes.
  2. The emotional and physical needs of the child both now and in the future.
  3. The emotional and physical danger to the child both now and in the future.
  4. The parental abilities of the person seeking custody.
  5. Any programs available to assist the person seeking custody to promote the best interest of the child.
  6. Any plans for the child that the person seeking custody may have.
  7. The stability of the proposed home for the child.
  8. Any prior acts or omissions of a parent that may indicate the existing parent-child relationship is not a proper relationship.
  9. Any excuses for those acts or omissions.

Decision-Making Regarding the Child

When a court appoints parents joint managing conservators, the court must also designate which decisions can be made by each parent independently, by agreement with the other parent, or exclusively by one parent.

Agreed Parenting Plans

Remember the State’s policy to encourage parents to share in the rights and responsibilities of raising their children after parents have divorced?

Well the law very much favors and encourages parents to create their own parenting plans that address custody issues. Any agreed parenting plan is still subject to court approval and the court will review the plan under the best interest of the child standard. But if the parents can agree on a reasonable plan regarding custody, then the court will likely approve it.

Age Matters in Custody Decisions

It is important to remember that the age of a child matters when making custody decisions. This is true in two respects: for children under the age of 3; and for children over the age of 12.

For children under the age of 3, the presumption regarding the Standard Possession Order being in their best interests does not apply. The law recognizes that younger children benefit from a stable and consistent environment.

This does not mean that the other parent cannot visit or have possession of their younger children, merely that there is no presumption regarding the Standard Possession Order.

There is a big myth I often hear from prospective clients regarding older children – namely that children over the age of 12 can choose which parent they want to live with. This is NOT true.

What changes at the age of 12 is that a parent can petition the court to have the judge interview the child in chambers and the judge must do so if requested. During that interview the judge will explore the child’s wishes regarding custody. But the judge is not bound by the child’s wishes regarding custody. The judge must still make the custody decision based on the best interest of the child.

Distinguishing Child Custody from Child Support

It is natural for parents to link the two issues of child custody and child support. However, a court cannot and will not condition possession or access to a child on a parent’s payment of child support.

This means that even if the parent without primary custody falls behind on their child support, they can still enforce their visitation rights.

General Rules of Property Division in a Texas Divorce

With few exceptions, every divorce in Texas will require a division of property. This article provides a quick overview of the general rules that govern property division in a Texas divorce as well as some of the key issues.

Community Property vs. Separate Property

Texas is a community property state. This means that, absent a marital property agreement, all property acquired during marriage is community property.

In fact, there is a presumption that all property in the possession of either spouse at the time of divorce is community property. If one spouse wishes to claim a particular piece of property as separate property, then that spouse has the burden of establishing its character as separate property.

So what is Separate Property?

Separate property is property that meets any of three characteristics: (1) it is property owned by the spouse before marriage; (2) it is property acquired by the spouse during marriage by gift, devise, or descent, or (3) it is a monetary recovery for personal injuries sustained by the spouse during marriage.

Just and Right Standard

Under the Texas Family Code, a judge is required to order a division of the community estate of the spouses in a manner that the court deems “just and right” with due regard for the rights of each party and any children of the marriage.

What is “just and right” can vary significantly and will be based upon the specific facts of each marriage. There are also a variety of factors a court will consider when deciding what constitutes a “just and right” division.

What Property is Subject to Division?

Only community property may be divided between the spouses or awarded to one spouse in a final decree of divorce. A divorce court does not have jurisdiction or authority to award the separate property of one spouse to the other spouse.

However, as you will see below, the judge may consider the existence of a spouse’s separate property and the value of the property in making a “just and right” division of the property.

Factors Affecting a Just and Right Division of Property

There is no limit to the factors a court can consider in arriving at what constitutes a “just and right” division of the community estate. However, there a number of common factors a court will consider that I have listed below:

  1. Fault in the breakup of the marriage.
  2. The relative education of the spouses.
  3. The employment, earning capacity, and business skills of the spouses.
  4. The age and physical conditions of the spouses.
  5. The financial obligations of the spouses.
  6. The existence and value of the separate estates of the spouses, including any expected inheritances.
  7. Whether the nature of a particular piece of property might benefit one spouse over the other.
  8. Whether a spouse wasted community assets.
  9. Whether a spouse provided temporary support.
  10. Whether there were any excessive gifts by one spouse to the children or another person.
  11. Needs of any adult children residing with either spouse.
  12. The tax consequences of any property division.
  13. Whether either spouse committed fraud on the community estate.
  14. Which spouse will have primary custody of any minor children.
  15. The behavior of the spouses during the divorce proceedings.
  16. Whether either spouse’s separate property was a source of income creating the community estate.
  17. The existence of any reimbursement claims.

What are reimbursement claims?

To understand a reimbursement claim, you must first understand that there are three estates in any divorce proceeding.

The first is the community estate consisting of all community property. The second and third estates are each spouse’s separate property estate.

It is not uncommon during a marriage, for one of the estates to provide funds that are used to benefit or improve another estate.

For example, one spouse might sell his or her separate property residence after the marriage and use those funds as a down payment on a new marital residence.

Another common example is that the spouses may spend their community income during the marriages to make improvements to a residence or other property that one of the spouse’s owned prior to the marriage.

At the time of divorce, the contributing estate may have a claim to recover those funds or some portion of those funds against the estate that received the benefit of those funds. This is called a reimbursement claim.

Key Issues When Dividing Property in a Texas Divorce

In any case, there are four key issues when it comes to dividing property in a divorce case:

  1. Identifying the property.
  2. Characterizing the property as community property or separate property.
  3. Locating the property (things sometimes disappear while the case is pending).
  4. And last, valuing the property.

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.

Estate Planning Issues for Blended Families and Second Marriages

Blended families and second marriages create a number of issues in the context of estate planning.  Difficult decisions must be made and competing interests must be prioritized.  Some of the common concerns include the following:

  1. Providing for the new spouse.
  2. Providing for children from a prior marriage.
  3. Providing for children born during the new marriage.
  4. Protecting assets from prior spouses.
  5. Whether and to what extent to provide for a new spouse’s children from a prior marriage.

What Happens to Your Assets After You Die

The key to estate planning for blended family is understanding two things: (1) the natural or default rules for distribution of your assets after death; and (2) your wishes for how those assets should be distributed.  Then it merely becomes a matter of prioritizing those interests, making tough decisions, and putting together a plan that accomplishes your objectives.  This plan may use a variety of tools such as a last will and testament, a trust or trusts, and marital property agreement.

For example, do you want to distribute all of your assets outright to your new spouse?  If so, do you know that your new spouse then has complete control over how those assets are distributed at his or her death?  What if your new spouse chooses to cut your children out of his or her will?

Do you want to provide for your children from a prior marriage?  Should they have to wait until your new spouses death or should they receive some sort of distribution immediately?  If they wait per the terms of a trust, that can often lead to bad feelings between your children and your new spouse – especially if the children must wait a long time to receive what they see as their rightful inheritance.

What about children born during your new marriage?  Should they receive some priority in the inheritance?  Should they receive the same percentage as children from your prior marriage?

What about your new spouse’s children from a prior marriage?  Should they receive any of your assets you acquired prior to marrying their parent?

How much control should your prior spouse have over your assets if your children are minors?  If you pass away leaving your assets to minor children, your prior spouse, as their parent, is a natural guardian of their property as well.  Should that spouse be able to use and dispose of your assets (for only the children’s benefit of course!) during their years of minority?  Perhaps those assets you left to your children would be better protected by an independent trustee?

Wills versus Trusts as Estate Planning Tools for Blended Families

A Last Will and Testament is the most basic estate planning tool and even if you choose to plan through some type of trust, you should always have a will in place to take care of any forgotten assets.  This is commonly referred to as a pour over will in that it leaves any remaining assets to the trust established as your main planning vehicle.

The problem with relying on a will as the primary planning tool in blended family estate planning is that once an asset is distributed under your will, you lose all control over how that asset is used or distributed upon the beneficiary’s passing.

For example, if you leave all of your assets to your new spouse, then you have no control over how your new spouse chooses to distribute those assets via his or her will.  While you may be aware of the contents your new spouse’s will now, your new spouse can always change their will after you pass.  This is one of the most common ways in which children from a prior marriage get left out.

Those assets you dispose of with a will are also subject to the beneficiary’s complete control – and therefore – subject to claims by their creditors or gifts to people you may not want to receive the benefit of all your hard work.

For example, if leave your assets to a spouse who remarries – then their new spouse now has access to all of your assets and hard work.  It would be a shame for those assets to go to waste and not be available to provide for your children.

That is why most blended family estate planning will involve the use of trusts.  A trust allows you to plan for who should benefit from your assets through multiple generations.

For example, your trust might provide that your new spouse gets the benefit of any income from your assets during his or her lifetime, but upon her death that right passes to your children.  In this case, your children might be children from a prior marriage or children from your new marriage.

A trust also allows you to protect your assets from creditors of your spouse or children, and also from greedy deadbeat spouses if your spouse remarries after your passing or your children choose their spouse poorly.

Trusts also allow some flexibility – for example – your children or spouse may hold a special power of appointment allowing them to designate who should receive future distributions from the trust when they pass.  However, you can place restrictions on that power of appointment such as limiting the potential appointees to individuals in your bloodline or within another defined group.

Beneficiary and POD Designations on Retirement Accounts and Life Insurance

Regardless of whether you conduct your estate plan through a will or a trust, you must ensure that your beneficiary and POD designations on any retirement accounts and life insurance plans are consistent with your estate plan.

If your primary planning vehicle is a trust, but your primary assets are in retirement accounts or life insurance policies that name an individual beneficiary, then your well thought out plan will be wasted.

Beneficiary designations can also be an important tool in estate planning for a blended family by providing opportunities to benefit different interests at the same time.

When assets are tied up in a trust for a new spouse’s benefit during his or her lifetime, the children from a prior marriage who might expect to receive the benefit of those assets down the line can develop ill will toward the surviving spouse.  This may lead to litigation between the surviving spouse and children over distributions made to the surviving spouse.

Using life insurance or retirement account distributions to provide some immediate benefit to children from a prior marriage can help avoid these complications and provide some immediate use of your estate by everyone with an interest in it.  This can help avoid conflict between your family members interested in your estate.  But these designations should be well thought out and consistent with your overall estate plan.

Planning for a Second Marriage with Pre and Post Marital Agreements

Pre-marital agreements are also a commonly used tool in estate planning for blended families.  Texas is a community property state and there is a presumption that all assets are community property unless you (or your executor) can establish that the assets as separate property acquired prior to marriage, by gift, devise, or descent.  Income from separate property is also community property.

But property agreements between spouses can be used to change these rules including characterizing property as community or separate as well as characterizing future income from that property.  While pre-marital agreements are the most common type of marital property agreement, in Texas marital property agreements may be entered into during marriage.

Pre and post marital agreements are often an important tool to balance the interests between new spouses, children from prior marriages, and children from a new marriage.  This is because only those assets that are your separate property or your share of community property are subject to your estate plan.

You cannot control or dispose of your spouse’s separate property nor their interest in community property, and likewise, your new spouse cannot control or dispose of your separate property or your interest in community property.

This makes pre and post-marital agreements important in clearly defining which assets will be available to each set of beneficiaries under their estate plan.  This also helps avoid nasty disputes that often arise among blended family members by allowing the blended family spouses to clearly define which assets are subject to disposition under each of their individual estate plans.

If you are about to remarry, or are already in a blended family marriage, and would like to schedule a consultation to discuss putting together an estate plan, then please visit my contact page and schedule a free consultation today.

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