Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

Typically, January through March is considered the "busy season" for divorce lawyers in Dallas.  After the first of the year, interest picks up in people wanting to file for divorce in Texas.  Many speculate that new year's resolutions give the spark to action for some.  Others figure that unhappy couples stay together through the holidays, intending to split afterwards.

I've also heard a theory that couples split after the Superbowl due to drinking and fighting.  I have to say I've never had any client as a Dallas divorce lawyer give me that as a reason for getting a divorce.  Some think Valentines might be a factor -- stay together long enough to see what the Valentine's present is, then call the divorce attorney.

Recently, a reporter in Columbus Ohio wrote that the statistics there show that March is the busiest month for new divorce filings, most likely because it takes a month or two to get an appointment with the divorce attorney, get the money together to pay her, and get the divorce on file.  See the article Couples Most LIkely To Call It Quits In March.

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One of the questions we are frequently asked is whether Texas allows alimony.  Before going into the substance of this question, it is important to note that the Texas Family Code calls 'alimony' spousal maintenance.  Given the frequency of this question, I'm going to break the answer up into a two part mini-series.

Spousal maintenance is available in certain very limited circumstances.  Under Chapter 8 of the Texas Family Code, spousal maintenance is available for:

• spouses of long-term marriages that lack sufficient property to meet his or her reasonable needs, and cannot support themselves because of his or her disability, a child of the marriage's disability, or his or her lack of earning capacity; OR
• The spouse of a convicted spouse for a criminal offense that constituted an act of family violence.

Tex. Fam. Code Sects. 8.051(1) - (2).  Courts have held that the spousal maintenance provisions under Chapter 8 of the Texas Family Code were promulgated to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage.  Although the spousal maintenance provisions were first enacted in 1995 to protect long-term homemakers, over the past 14 years they have been expanded greatly.  Notwithstanding this expansion there are significant obstacles that present themselves along the way to awarding spousal maintenance.

Even if the court orders spousal maintenance there are a litany of factors the court must then consider in determining the amount to order.  These factors (in no particular order) include: 

• The seeking spouse's financial resources;
• The financial resources of the spouse from whom maintenance is sought;
• The relative financial resources of both spouses;
• The spouses' contributions to each others earning capacity;
• The amount and value of the separate property brought into the marriage;
• The duration of marriage (in excess to the required 10 year duration if maintenance is not sought under the family violence qualification);
• The age, employment history, earning capacity, and physical/emotional health of the spouse seeking maintenance;
• Whether the parties committed any marital misconduct (i.e. extramarital affairs);
• The contributions as a homemaker by the spouse seeking maintenance; and
• The education and employment skills of both spouses.

There is a final hurdle that has to be cleared on the road to spousal maintenance -- the duration of the award.  As a general rule, courts cannot order spousal maintenance for more than three years.  Tex. Fam. Code Sect. 8.054(a).  Additionally, spousal maintenance must be limited to the shortest reasonable period.  Thus, spousal maintenance could be ordered for a year in duration.  Like most rules of law, there is an exception to this.  The duration of spousal maintenance can exceed three years if the spouse seeking maintenance is unable to support him or herself because of a physical or mental disability; or is the custodian of a child of marriage who has a physical or mental disability.  Id. at Sect. 8.054(b). 

As a Dallas divorce lawyer, I frequently encounter individuals who are either completely unaware or misinformed about the spousal maintenance provisions.  If you believe you fall into either of the scenarios where spousal maintenance is available, please don't hesitate to contact our office.

In the next part of this mini-series I'll address enforcement and collection of spousal maintenance awards.

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It is easy to get lost in your emotions amidst a divorce.  During such an emotional time it is easy to forget that divorce may be the end of a marriage but not the end of a family.  Sections 153.311 through 153.317 of the Texas Family Code sets forth the standard possession order promulgated by the legislature to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.  Consequently, co-parenting is viewed as a necessary means to achieve the legislature's intent.  Couples who separate but continue to work cooperatively as parents give their children the best chances for a smooth adjustment to living in two separate households and continued growth.

I recently came across a South Carolina Family Law Blog posting discussing five tips for effective co-parenting.  Although much of the advice is common sense, it must be remembered that sometimes our emotions override our "common sense."  Here are the five tips:

1. Keep emotions in check. There may be some lingering anger, sadness and resentment among you, but your kids have already been [sic] enough. Give them the benefit of parents that work together instead of yelling, fighting and name-calling.
2. Think about the kids. At the end of the day, your children are what really matter, not your own personal feelings towards your former spouse. No matter what kind of disputes come up – from where to spend holidays to disputes over money – put aside what you want or need and take the time to consider your children’s desires and best interests.
3. Communicate. It will be very difficult for either of you to be effective parents if you do not communicate information to one another. Whether it’s sharing news about school events or updates on your child’s health, make sure you share all important information with the other parent.
4. Be businesslike. You are no longer married, but you still have to interact with your ex for the sake of your kids. It can sometimes be helpful to stop thinking about your relationship in personal terms and start thinking about it in more professional ones, seeing your ex as a partner in the business of raising happy, healthy children.
5. Don’t badmouth. You have little to gain and a lot to lose when you choose to say hurtful things about your ex in front of your children. Your children may be well aware of the reasons why you and your former spouse do not get along, but that doesn’t mean you have to keep dragging them out. Even if you no longer love your ex, your children still do, and they deserve an environment that doesn’t attempt to manipulate or deride those feelings.

In addition to basic parenting issues, the couple must somehow find a way to do what was probably a challenge in their relationship: communicate clearly and effectively with each other. Working together is essential to the success of a co-parenting arrangement. It may be hard to work through your communication issues, but everyone will benefit if you do.

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Approximately two weeks ago a bill sponsored by State Representative Warren Chisum (R) requiring couples to attend counseling prior to filing for divorce died in the 81st legislative session.  Under House Bill 480, the party seeking a divorce would have been required to attend ten hours of counseling in conflict management, communication skills and forgiveness skills.  Representative Chisum sponsored the bill in order to address the state's high divorce rate (upwards of 55% for first time marriages and 70% for subsequent marriages). 

According to the Dallas Morning News the bill was popular among social conservatives and marriage counselors who claimed the bill was designed to save marriages "[t]hat have fallen on hard times."  The bill would require the spouse seeking a divorce to complete the ten hour course before filing court papers; otherwise, the divorce petition would be dismissed.  Further, Representative Chisum's bill would allow to judges to decide child custody issues on whether a parent completed the required counseling.

Despite your political affiliation, I see several problems arising from Representative Chisum's proposal:  (1) Do we really want to enforce the counseling requirement in cases where the spouse filing for divorce is doing so because of domestic violence; (2) what about cases where there is alleged abuse of a child, certainly waiting to file could present issues of child safety; and (3) what if the spouse filing is doing so because of substance abuse issues of the other spouse? 

Although many people walk into our office not wanting a divorce, forcing individuals to undergo an additional hurdle before filing is not the best way to address our state's high divorce rate.  A divorce is one of the most stressful events a person can endure.  Obstacles like the proposed bill would only add to the stress - not alleviate it.

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In Collin County, Texas, every divorce that gets filed has the Collin County Standing Order attached to it, which is effective against both parties to the divorce.  The Standing Order replaces the previous procedure to apply for the standard family law restraining orders.  The purpose of the Standing Order is to provide some general rules of behavior for parties during a divorce. It prohibits behaviors such as changing the child's school or day-care, making harassing phone calls, or opening the other parties mail.  It also prohibits either party from changing beneficiaries on life insurance or disconnecting utilities at either party's residence.

As far as enforceability... the Standing Order is not very enforceable.  So, if there's some behavior you are particularly interested in curtailing, the better course of action is to get an order from the court directed specifically at the party to prohibit the action. 

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