Wooden Blocks with the text: MythsThis post is a continuation of the discussion about the 12 Top Divorce Myths. Here’s the link to part one: Do the 12 divorce myths apply in Texas?

Myth 7: You can avoid paying child support.

Child support is a mandatory order in Texas and must be ordered absent extreme circumstances. If you are ordered to pay child support and fail to comply with the order, you can be held in contempt and jailed for up to 6 months. The Office of the Attorney General in Texas undertakes enforcement of child support orders.

Myth 8: Children get to pick who they live with.

This is my favorite myth of all. Children never get to pick who they live with in Texas. Ever. Ever. Period. When they turn 18 and are addults, they get to decide where to live. Not before. While they are minors, those decisions are made by adults. At the age of 12 nad older, a parent may request that the child be interviewed by the judge and the judge can give whatever weight he or she deems appropriate to the child’s statements. However, judges are not required to follow the child’s preference and may still make a decision in the est interest of the child, even if it is different than the child’s preference. Read my blog post Myth: 12-year old children get to pick where they live.

Myth 9: Divorce always leads to battles.

Divorces do not have to be full of hostility. Many people are able to set aside their emotions and reach agreements regarding issues without having to have contested proceedings. Even if things start out difficult, many spouses settle their matters after the divorce gets underway either directly or through mediation. Only about 5% of all divorces filed in Texas end with a contested trial where a judge decides the issues for them.

Myth 10: Division of property means equal division.

The standard for granting a division of property in a Texas divorce is “just and right”. In a contested trial, what a judge thinks is just or right may vary from situation to situation and depends on many factors. Texas law starts at a 50/50 division and then allows he judge to deviate from 50/50 based on factors such as the needs of the spouses, the amount of separate property each spouse has, whether the spouse has children at home, whether either spouse was at fault in the break-up of the marriage, and various other equitable factors. Read Practical Guide to Asset Division in Texas.

Myth 11: Women always get maintenance and men never do.

In Texas, post-divorce court-ordered maintenance, can only be awarded in four limited situations. First, regardless of the length of the marriage or quantity of property available to divide, if a spouse has been convicted of a crime constituting family violence, then maintenance can be awarded. The other three factors require at least a 10-year duration of marriage and insufficient assets in the division of the estate to meet the minimum reasonable needs of the spouse seeking maintenance. Only then is the court authorized to award maintenance if either the spouse lacks job skills to get a job to meet the minimum reasonable needs; or, the spouse himself or herself has a disability that prevents working or has a child with a disability that prevents working. The court-ordered maintenance statute is gender neutral and does not favor men over women. Read: Maintenance in Texas — Part 2 Eligibility.

Myth 12: Most divorces go to court.

Actually 95% of divorces settle without going to court. Only a few divorces end up having a contested trial where a judge makes decisions about divorce, property division, or children.



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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.