This post will discuss the various issues related to a Texas divorce when the spouses also have marital children. Procedurally, the court conducts the divorce in much the same way that it would if the divorce proceeded was without marital children. There is, however, one major distinction. Any divorce filed in Texas involving minor, marital children must also include a suit affecting the parent child relationship (SAPCR). The SAPCR is conducted to determine custody (in Texas it is called conservatorship) and child support obligations. This will be discussed in greater detail below. The process for obtaining a divorce in Texas is discussed first.
You’ll recall that filing a divorce in Texas requires at least one of the spouses be a Texas resident for at least 6 months prior to filing the petition. This is true even if the non-filing spouse does not live in Texas. If you meet this requirement, you can file a petition for divorce in the county in which you have lived for at least 90 days. Your petition must include whether a protective order for family violence is in effect and a SAPCR, because the divorce involves minor, marital children. It is important to clarify that non-marital children, that is children whose mom or dad are not one of the parties to the divorce (step-children), are not included in a SAPCR. Rather, non-marital children remain in the custody of the biological parent or managing conservator and subject to the support obligations as issued by a previous court order, if one exists. Of course, each divorce is unique and the spouses can negotiate another option for the custody and support of non-marital children.
The petition must also state the grounds for divorce. Most petitions are filed under “no fault,” meaning the petitioner asserts that the marriage “has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation.” Less frequently, petitioners assert “fault” grounds. This includes cruel treatment, adultery, abandonment, and the like. Asserting “fault” or “no fault” could have an impact on the disposition of marital property, which is left to the discretion of the court.
An important aspect of the divorce is the SAPCR. When determining child custody, the court will primarily consider the best interests of the child(ren). Texas, as a matter of public policy, seeks to create custody arrangements that ensure frequent contact between the child and its parents, provide stability for the child, and encourage shared responsibility over the child between the parents. The court will assess a long list of factors to determine what arrangement is in the best interests of the child. The court could establish a joint managing conservatorship. This means that both parents will have legal rights to make important decisions for the child, but it does not require equal possessory time. One joint managing conservator will have the exclusive right to determine the child’s primary residence. The court could also establish one parent as the managing conservator and the other parent as the possessory conservator. The managing conservator has custody of the child, while the possessory conservator is granted visitation rights.
Unless modified by the parties, or not in the best interests of the child, the court will impose a standard possession order. The standard possession order applies to a possessory conservator or to a joint managing conservator that does not have the right to determine the child’s primary residence. The standard possession order is as follows:
- 6:00 p.m. Friday through 6:00 p.m. Sunday starting on the 1st, 3rd, and 5th Fridays in a month
- 6:00 p.m.–8:00 p.m. on Thursday nights during the school year
- 30 days over the summer
- Alternating spring breaks
For this order to apply, the parents must live within 100 miles of each other. Otherwise, the court will apply different rules. Parents who wish to negotiate and agree to another arrangement are encouraged to do so within the best interests of the child.
The amount of child support owed will also be determined during the SAPCR. Texas statute provides the following amounts:
- 1 child = 20% of the payer’s net resources
- 2 children = 25% of the payer’s net resources
- 3 children = 30% of the payer’s net resources
- 4 children = 35% of the payer’s net resources
- 5 children = 40% of the payer’s net resources
- More than 5 children = not less than the amount for 5 children
These amounts can be adjusted if the payer also has children from other relationships. Additionally, the court can deviate from the statutory guidelines if doing so is in the best interests of the child. Please note, that being intentionally unemployed will likely not relieve you of your obligation to pay child support. Court ordered child support remains in effect until the child turns 18 or the child graduates from high school or stops attending high school, whichever time is later. If you are denied visitation, you are still required to pay child support. Discontinuing child support because you are not permitted time with your child(ren) is not the appropriate remedy.
A qualified attorney is better to handle divorce proceedings that involve children. If you are contemplating divorce, and you and your spouse have children, call us so that we can assist you with the details. We will work with you to ensure a most suitable outcome for both you and your children. We can ask the right questions to better understand your circumstances. Give us a call, and let us see how we can help.
Suggested tags: texas family law, texas divorce, divorce, divorce with children, marital children, texas sapcr