Texas Divorce and Custody: A Guide for Caring Men and Fathers

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

WARNING: This eBook is for your personal use only.

You may NOT Give Away, Share Or Resell This

Intellectual Property In Any Way.

way. Permission is granted to download and print this ebook for the purpose of viewing, reading, and

retaining for reference. Any other selling, reprinting, copying, distribution, retransmission, or modification

of information or materials in this ebook, whether in electronic or hard copy form, without the express

prior written permission of Josie Margaglione, is strictly prohibited, except for the inclusion of brief

quotations in a review.

Disclaimer

The materials available in this ebook are for informational purposes only and not for the purpose of

providing legal advice. You should contact your attorney to obtain advice with respect to any particular

issue or problem. Use of and access to the information and materials in this ebook do not create an

attorney-client relationship between Josie Margaglione or Margaglione Law, PLLC and the reader.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Contents

Introduction .................................................................................................................................................. 6

Chapter 1 – Phases of a Family Law Case ..................................................................................................... 7

Phase 1: Pre-filing .................................................................................................................................... 9

TIME ..................................................................................................................................................... 9

MONEY AND COST .............................................................................................................................. 10

ACCESS TO AND RELATIONSHIP WITH KIDS ....................................................................................... 11

POTENTIAL LIABILITIES ....................................................................................................................... 11

SAFETY ................................................................................................................................................ 12

MENTAL HEALTH AND/OR SUBSTANCE ABUSE .................................................................................. 13

REPUTATION ....................................................................................................................................... 14

Phase 2: Filing of divorce/custody suit .................................................................................................. 15

PETITION ............................................................................................................................................. 15

SERVICE .............................................................................................................................................. 15

NOTES FOR DISCUSSION WITH YOUR ATTORNEY .............................................................................. 16

ANSWER ............................................................................................................................................. 16

WAIVERS OF SERVICE ......................................................................................................................... 17

Phase 3: Temporary Orders ................................................................................................................... 17

WHAT ARE TEMPORARY ORDERS? ..................................................................................................... 17

PREPARATION FOR TEMPORARY ORDERS HEARING .......................................................................... 18

WHAT IS NEEDED FOR HEARING ........................................................................................................ 18

THE HEARING DAY .............................................................................................................................. 19

Phase 4: Discovery ................................................................................................................................. 20

TYPES OF DISCOVERY ......................................................................................................................... 20

Phase 5: Mediation ................................................................................................................................ 22

Phase 6: Final Trial ................................................................................................................................. 23

PREPARATION FOR FINAL TRIAL ......................................................................................................... 24

JURY TRIAL .......................................................................................................................................... 26

JUDGES ............................................................................................................................................... 26

DEFAULT JUDGMENT ......................................................................................................................... 26

Chapter 2 – Alimony, Spousal Support and Division of Property (Divorce) ................................................ 27

Where does all the money go?!? ............................................................................................................ 27

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

ALIMONY, SPOUSAL SUPPORT AND SPOUSAL MAINTENANCE .............................................................. 27

Eligibility for Court-Ordered Spousal Maintenance ........................................................................... 27

Duration of Spousal Maintenance ..................................................................................................... 28

Amount of Spousal Maintenance ....................................................................................................... 28

Enforcement of Spousal Maintenance ............................................................................................... 28

Contractual Spousal Alimony ............................................................................................................. 28

Termination of Spousal Maintenance ................................................................................................ 29

Temporary Spousal Maintenance ...................................................................................................... 29

PROPERTY DIVISION ............................................................................................................................... 30

Who gets what property and how do we divide everything? ............................................................ 30

Just and Right Division ........................................................................................................................ 31

Retirement Accounts .......................................................................................................................... 32

Real Estate .......................................................................................................................................... 32

Chapter 3 – Kids .......................................................................................................................................... 34

CHILD SUPPORT ...................................................................................................................................... 34

State Involvement: Office of the Attorney General “OAG” ............................................................... 35

State Disbursement Center and Automatic Employer Withholding .................................................. 36

Arrearages and Enforcement ............................................................................................................. 37

Modifying Child Support .................................................................................................................... 37

MEDICAL SUPPORT ................................................................................................................................. 38

PARENTAL RIGHTS .................................................................................................................................. 38

POSSESSION/VISITATION ........................................................................................................................ 42

Standard Possession Order ................................................................................................................ 42

50/50 and Other Non-Standard Schedules ........................................................................................ 43

Military ............................................................................................................................................... 44

Alienation ........................................................................................................................................... 44

Safety Precautions, Drug/Alcohol/Mental Health Issues, Physical Abuse/Child Neglect Issues ....... 44

PATERNITY .............................................................................................................................................. 45

Chapter 4 – What Happens Next? .............................................................................................................. 47

LENGTH OF OBLIGATIONS AND/OR ORDERS .......................................................................................... 47

APPEAL .................................................................................................................................................... 47

MODIFICATION OF FINAL ORDERS ......................................................................................................... 48

OFFICE OF THE ATTORNEY GENERAL (“OAG”) ........................................................................................ 49

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

ENFORCEMENT ....................................................................................................................................... 49

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Introduction

Whether you are going through or still considering divorce or the break-up of your family, this is one of

the most stressful times of your life. The purpose of this book is to give you some answers to frequently

asked questions or to those questions that you did not even know to ask. It is my goal to help you

understand more about the legal process and practical consequences of divorce and custody issues in

Texas, so that you can make better, more informed choices throughout this process, resulting in a happier,

healthier, and more productive you.

Divorce and custody fall under the legal category called family law. Family law is any situation that deals

with divorce, child custody, child support, paternity, termination of parental rights, or adoption. It does

not include wills and wishes (estate planning) or the legal suit that you need to file when a family member

dies (probate). Though you may find many attorneys who handle both family cases as well as estate

planning/probate cases, and though we are often dealing with the same type of highly-emotional people

in emotionally-charged situations (i.e. family feuds), these are two completely different areas of the law,

and you should consider having separate lawyers represent you for these cases.Many lawyers who are

criminal defense attorneys want nothing to do with family law, and vice versa. I have often heard lawyers

say that criminal defendants are bad people on their best behavior and family law clients are good people

on their worst behavior. It does not have to be that way, and I have had some amazing family law clients.

But to be fair, family law is incredibly emotional, which means that it is very hard to think rationally and

be the caring person that you normally are. My goal in this book is to answer some basic questions about

family law and help you through this very difficult process, so that you can rediscover the wonderful,

loving and generous person that you truly are, so that you can share that love and devotion with your

family and friends.

In this book, I will be talking about divorce and custody, but other elements of family law are generally

present in these cases. As such, my convention in this book is to just use the term Family Law throughout.

This book is specifically about divorce and custody in Texas. The law and procedures differ greatly from

state to state, so the specifics of how your case is handled in Texas will be very different from how it will

be handled in Illinois. Yet there is one thing that is true in all jurisdictions: how you handle yourself and

treat others during this period will greatly impact the time, emotion, and expense involved!

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Chapter 1 – Phases of a Family Law Case

Clients come to me at different stages of a family law case. It is important to consider the idea that divorce

(and even a custody case) is a process, and not an event. There is a grieving process that the parties go

through, and rarely do the parties go through each stage at the same time. Usually when a couple files

for divorce or custody, or to modify a custody order, at least one of the parties is angry. This anger by one

or both parties can cause great difficulty and delays in the ability to work out their differences. It is also

the primary reason that family law cases get expensive. More on that later.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Figure 1 - Progression of Your Divorce or Custody Case

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Phase 1: Pre-filing

The ideal time to talk with a lawyer about custody or divorce is before anything bad has happened, or

before a significant change occurs. If you are thinking about, but still trying to decide whether you want

a divorce, this is the ideal time to talk with a lawyer. If your girlfriend or ex-girlfriend is pregnant with

your baby, this is a very good time to talk with a lawyer. If a few years have passed since your divorce or

custody orders, this is a good time to talk with a lawyer. If something significant suddenly happens to

your children, this is a good time to talk with a lawyer. If something significant is about to happen in your

life that will affect your children, this is a good time to talk with a lawyer. The adage “an ounce of

prevention is worth a pound of cure” is especially true in family law.

When you are considering filing a divorce or custody suit, there are many factors and priorities to consider

and weigh; I will address the most common ones.

• Time

• Money and Cost

• Access to Kids

• Relationship to Kids

• Potential Liabilities

• Safety

• Mental Health

• Reputation

TIME

How long is this going to take? How much of my time is this going to require? How will this change my

work and life schedule? How much work am I going to miss or have interrupted? How long will this be in

effect for?

There is no standard amount of time for a family law case. If the parties are unable to come to an

agreement, family cases usually last about 6 to 12 months. Sometimes shorter, but sometimes longer,

depending on the issues and possible solutions in each case.

There is a significant amount of work that you, the client, need to do to help your attorney understand,

prepare for, and work through your case. Ideally, you should put your stories and information in a concise,

organized, written form for your lawyer. Be aware that not everything is relevant to your case, even if it

is something you think is incredibly important. I have had clients come in with suitcases full of records,

printed out emails, Facebook transcripts, pictures and every other type of “evidence” imaginable. Let

your lawyer guide you and you will save a lot of time!

Make sure you prepare for the time commitment required by your case. Gathering and providing

documentation for your lawyer can take some time, but usually can be done in off-work hours. There are

often questions where you will need to respond to your lawyer in a timely manner. Time can be critical

in a family case! Bear in mind that you may also need to take off a day or even a week for a mediation,

hearing or trial. Finally, remember that you not only need to coordinate this with your work, but also with

your childcare person or organization.

The case might require you to spend more time on your children, to accommodate their school and

extracurricular activities. It might eat into your time at work, particularly if you are self-employed.

Perhaps all the extra time with your kids is exactly what you want, but you need to understand how it can

affect you, your work schedule, and your life schedule.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Once the dust settles and court orders are worked out, the orders might be in effect for a couple weeks

or many years, depending on the situation. There might be a temporary resolution, which must be given

time to see if it will work out. There might be a more permanent resolution, which goes into effect right

away. Much of this will depend on your specific situation.

MONEY AND COST

How much is this process going to cost me? How much am I going to have to pay in child support, or how

much is the other party going to have to pay me in child support? How much am I going to have to pay

for medical insurance, or how much is the other person going to have to pay? Am I going to have to pay

or am I going to be able to receive spousal support/alimony? How much is she going to get and what am

I going to be left with? Am I going to be financially ruined by this? What is going to happen to my credit?

How much your case will cost in attorney fees and expenses can vary dramatically. The monetary cost

depends on how well or poorly you and your spouse (or ex) communicate, what you agree on and what

you fight about, what stage you are at in the process, what has been done or what has happened so far,

what you expect to happen, what you want to happen, how cooperative you are with your attorney’s

requests for information, how much time and capability you have, what resources you have, what experts

might need to be brought in, what evidence is needed and wanted, etc. You will discuss all of this with

your attorney, who will then be better able to give you an idea of what this will cost. You will also need

to keep in mind that this might change as circumstances change. If your first question to your lawyer is

“how much will this cost?”, do not be surprised when you get the only honest answer available: “it

depends”!

Big ticket items like child support, medical support and spousal support can dramatically affect your life,

positively or negatively. You and your spouse may decide that none of these is necessary. But your spouse

may think that you need to support her for the next decade. Knowing what is likely to occur in court can

help you plan better.

Sometimes, your access to your children impacts how much money you are able to make. Sometimes the

legal process requires you to take time off work or effects your ability to focus at work, and therefore can

significantly impact your income. Your ability to travel, or to move to new job opportunities, can be

limited by the court. These are all important factors to consider.

And yes, divorce usually ruins a person’s credit. Some people have no credit when they begin a divorce,

because everything was done in the spouse’s name. Some people’s credit is simply ruined because there

is not enough money to support two households on the income that previously supported one household.

And for some, they are still linked to their ex-wife financially after the divorce, because she continues to

live in the house; the mortgage was in both names, but she can not qualify for a mortgage on her own.

The result is that his credit can still be ruined by her financial distress many years after the divorce.

The final part of the money question is really a question of money versus cost. The question then becomes

what will each decision in this process cost me? I’m not only talking about the actual, financial cost, but

also the cost to your relationships, to your sanity, to your future, to your children. For example, the cost

of representing yourself can be extremely high. It is not hard to imagine even a highly intelligent person

being outmaneuvered by the other side’s lawyer. It may also be possible to imagine not being able to get

your point or story across to the judge in the way you want. The impact of having the wrong lawyer

represent you can also be costly. You need to make sure that you have the lawyer that best fits you, your

personality, and your situation. If you and your lawyer are not on the same page, that can cause

misunderstandings and problems in the presentation of your case. As with the general population,

lawyers have different styles and motivations that may or may not reflect your own: for example, the

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

lawyer you are considering may be too aggressive and unnecessarily cause or incite disagreement, or the

lawyer you are considering may be not aggressive enough for your preference and leave money on the

table. In any case, you should check into the background and reputation of a lawyer before you hire them

to make sure that your goals align with the lawyer’s style. Furthermore, the rules about what can and

cannot be introduced into evidence are complicated and local court procedures vary wildly, and that is

why having the right lawyer helping you present your case can make all the difference for you, for your

financial situation, for your relationships, for your children, and for your future.

I have had a clients come to me frustrated, because they did not feel therir prior attorney listened to

them. In one case, the client told me that, he and his soon-to-be-ex were talking and had worked out an

agreement between themselves. But then when they each took it to their attorneys, somehow, it not

only didn’t work out in agreement, but it turned out to be a bigger legal fight. Now, not having been

involved, it’s hard to say exactly what the breakdown was, but clearly, there were big communication

issues that end up costing these two people a lot more money and hassle than they wanted.

Worst of all is the cost of inaction or action at the wrong time. Failing to act at the proper time can have

severe effects on your children, on your relationships with others, on your mental health, and on your

finances. For example, failing to act when your child’s mental or physical health are in danger can have

dire consequences, including having your child taken away from you. On the other hand, if you try to take

action to modify a court order without enough of the right kind of proof for the judge to modify the order,

then you have just wasted money on lawyers that could have been spent on your child. You may also cost

yourself credibility in the eyes of the court if you act at the wrong time. Pay close attention to time limits

and dates: acting too late can limit your ability to challenge or change your circumstances in court.

ACCESS TO AND RELATIONSHIP WITH KIDS

Is she preventing you from all access to your child? Are you the primary caretaker for your child? Do you

want more time with your kids? Do you need a different schedule with your kids? Do your kids want

more time with you?

Kids need access to both parents, no matter how good or bad of a parent that person is. Kids love and

need love and attention from both their parents as well as anyone else who is willing to give them love

and attention. The impact of not enough love and attention on a child can be devastating. The impact on

a parent of not being able to give love and attention to their child can also be devastating. Maybe you

are doing everything you can for your kids, but you need the other parent to do their fair share of raising

the kids. Maybe you need a specific schedule for your time with the kids, but the other person refuses to

cooperate. Access to children is the most common point of contention in a custody case, and therefore a

major cost driver.

POTENTIAL LIABILITIES

How much debt has she incurred? Where is the money going? What debts am I going to be responsible

for? If she takes the house and the mortgage, then what happens to me and my credit if she is unable to

make the mortgage payments? What should I take on and what should I let her take?

During the divorce process, there are a couple different ways to find out exactly what your financial

situation is, including information that she refuses to provide directly to you. You have the right to require

the other person to provide information and documentation on property and debts in both your names

or in either of your names.

How particular debt is divided upon your divorce will depend greatly upon you and the specifics of your

case. Sometimes a client is able and willing to let his ex-wife continue to live in the house with his name

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

on the mortgage, feeling confident that she will be fiscally responsible to make the mortgage payments

on time. But some people do not have that option, because that would prevent them from getting a

mortgage on their own, new house. In those cases, often the house must be sold. But sometimes, further

down the line, the ex lets you down by failing to make timely mortgage payments, reeking havoc on your

credit, so one course of action is to foreclose on the house. In any case, you should work closely with your

lawyer to make sure that you minimize your liabilities and prevent having to take further legal action in

the future.

There is potential liability, not only with creditors, but also with law enforcement and others. At the end

of a divorce, you want to take the credit cards that are in your sole name (so that you have control over

your credit… but you may not want all the debt associated with it. Planning in advance may allow you

adjust this so that by the time the final division occurs, you are protected.

One situation I have encountered is that she was using the car, but it was in his name. The issue that

arose was that she had gotten a traffic ticket, failed to pay it, and incurred fees and a warrant for HIS

arrest. In this particular situation, my client paid the cost of the ticket (to clear the arrest warrant), but

that amount was deducted from his wife’s portion of the property at the time of divorce. At the time of

divorce, he also provided documentation to his ex to put the vehicle in her name, but he also sent the

necessary documentation to the Secretary of State.

Another question I have heard is; I take on a community credit card, but she is still using it for herself after

the divorce. Usually your divorce decree will specify exactly who can use what cards and require the

parties to return the cards they are no longer authorized to use to the other person by a specific date. If

a person violates that order, then the order can be enforced through the legal system.

SAFETY

If you have immediate safety concerns either for yourself or your children, these need to be addressed

quickly! Don’t take chances with your safety, or the safety of your children.

If you believe your child is in immediate danger, or immediately after you discover there has been abuse

or neglect, you are required to contact either the police or CPS within 72 hours.

If you or your spouse have a long history with CPS (or the police), that is definitely going to come up in

court, and it will not be pleasant. The court takes family violence seriously. Be very careful during the

divorce that you do not threaten your spouse or do anything that can be considered family violence,

including hitting, grabbing or pushing your spouse, or taking their phone away from them. If you are so

frustrated that you feel the need to put your fist through a wall, do it at the gym to a punching bag, not

at your house.

Do you want or need to get orders in place or need to change the current orders about the child?

Sometimes you may need to ask the court to order that your spouse’s visits be supervised and limited,

particularly if the parent is not mentally stable or has put the child in danger. Sometimes, other, less

intrusive options may be appropriate.

Would it be better to get a third party through the courts to investigate and evaluate my child’s situations?

There are many times when it is more appropriate for a third party to advocate for the child or for the

child’s best interest. There are different types of advocates for children in the court system, so you should

work closely with your attorney to ensure that your goals are met by having the right type of advocate

involved.

Can I get a protective order or a restraining order? A protective order is appropriate where there has

been family violence in the recent past, and that violence or threat is likely to continue in the future. A

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

protective order has severe consequences on the person whom it is against and is usually limited in time.

A restraining order does not necessarily have a time limit, it can apply to one or more parties, and it can

address additional issues that a protective order can not. Sometimes a protective order or a restraining

order can make a situation worse, so it is important for you to discuss these options with ALL of the

appropriate professionals (including therapists/counselors, police, etc.).

Is the order for me only, or for me and the children? Often a protective order is obtained for the entire

family, which sometimes even includes grandparents and pets who also live with the protected person.

Here is another common question: “I have been falsely arrested for domestic violence. She tried to get a

protective order against me, but was not able to. I do not want to be anywhere near her, because I am

afraid she’ll get me arrested again. But I want to see my children. What do I do?”. This is a particularly

sensitive situation that requires preventative planning and strategy, including working with both your

criminal defense attorney and your divorce/custody attorney. There are some simple ways to protect

yourself, including, for example, exchanging your child at the police station or another public place,

preferably with cameras.

Remember that men can be abused just as much as women! We are all aware of and believe that men

abuse women, but the public (and even law enforcement) has a hard time believing that a woman could

be physically abusive to a man. What the general public does not realize is that men are even more shy

and quiet than women about this kind of abuse. It can be embarrassing and humiliating to admit that

someone has abused you. Men blame themselves rather than seeking help. Regardless, abuse is never

acceptable.

MENTAL HEALTH AND/OR SUBSTANCE ABUSE

Mental health and substance abuse issues are all too common in divorce and custody cases. They are

often the primary reason for the divorce. Here are just a few of the things I hear regularly:

• My spouse/ex has not been diagnosed with mental illness, but I think she is bipolar.

• My wife is great with the kids when she is taking her medications, but she keeps trying to go off

them, because she doesn’t like how she feels when she is on them.

• My wife has tried to kill herself in the past, and I’m really worried about her right now, especially

when the kids are with her, because of this divorce.

• I am a recovering alcoholic, but I have been sober for 3 years. Is the judge going to hold that

against me?I go to a therapist. Does that make me look bad?

Bear in mind that proving mental health and substance abuse in court is difficult. What you have

personally seen and heard does not hold much weight with the court. Why? As shocking as it sounds,

people lie all the time in family court. This “he said, she said” is exhausting to the judge, and can backfire

on you! Things that can help you include testimony from a disinterested witness, which is a neutral third

party. That excludes friends and family, but includes police and other governmental workers, neighbors

that are not personal friends, bystanders, etc.

There is also doctor-client privilege, so even though your spouse is seeing someone for help, getting

information from the doctor or psychologist often requires a court order, which is not easy to get. I can

not count the number of times the judge has ruled in favor of a mentally ill or drug-addicted spouse, even

when there is good evidence available.

Finally, the fact that you are getting professional help for your own issues and that you take positive steps

to maintain your physical and emotional health, will generally count FOR you in court.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

REPUTATION

I have clients who come to me concerned about what their friends, family and co-workers will think about

their divorce or their custody battle. This is inane, as we all know people that have gone through divorce,

and we do not think less of them for it. Heck, some of your friends and family may have seen the divorce

coming long before you did. They may even have been waiting for it to happen, and are so happy that it

is, because they want you to be happy again.

What is really sad is when a client tells me that he may have lost his best friend, because he didn’t tell his

friend how unhappy his marriage was. They hide the divorce from their best friend, but inevitably the

truth comes out, and their friend is furious that they were kept in the dark, unable to help!

This is exactly the time to reach out to friends and family for support and assistance. This may be one of

the hardest things for men to do, because men are taught not to express their feelings publicly. But you

have a support network. Your friends, family, and co-workers want to be helpful, and most importantly,

they want you to be happy.

I can not tell you how many people have told me that they are staying in a relationship “for the children.”

This is a lie that people tell themselves to make themselves feel better. Children know when their parents

do not love each other; children know when their parents do not get along or are angry at each other. It

does not matter if you do not argue or fight in front of the children. They pick up on all the non-verbal

and verbal cues that you are broadcasting. If you and the other parent are miserable together and you

insist on staying in an unhealthy relationship, then your children are the ones suffering, often in silence.

Wouldn’t you rather be the model of a healthy relationship for your children? Even if your kids currently

seem to be doing just fine, can you imagine how much better they would be doing if you and the other

parent were actually happy, separately? No one is saying that divorce or separation is easy on anyone. It

can be very difficult on the children, but staying together in an unhealthy relationship can be far more

harmful to a child than breaking up and reforming the family.

Finally, let’s talk more about another reputation that you may be concerned about – your own, with

yourself. A divorce or a break-up is not failure. People change over time. Some people were not who

you they thought they were. Some people turned out to be exactly who you were afraid they might be.

A divorce or a break-up is a new beginning. If you have no children with that person, then it is truly a

fresh, new start. If you do have children with that person, then it is still a new beginning, but you have to

figure out a way to deal with issues that you have been struggling with. Some people have a very hard

time with change, because the unknown can be scary. Sure, the unknown is frightening, but the

possibilities can be wondrous.

Albert Einstein said “the definition of insanity is doing the same thing over and over again, but expecting

different results.” In high conflict divorces and custody battles, I often find that this is not the first

unreasonable person that my client has chosen to be with. People are often attracted to a particular type

of person, sometimes an unhealthy type of person. When this occurs, it is important for you to stop the

cycle, and you do this by better understanding yourself. Divorce and custody suits are the perfect time

for you to do a self-evaluation. This does not mean that you are at fault. But it is an opportunity for self-

improvement, which has the highly improved chance of drastically improving your self-image, your

happiness and your well-being.

Another thing men are notoriously afraid of is therapy, but we all need a little therapy from time to time.

Getting help is a sign of strength, not weakness. Now is an excellent time to start getting help from a

therapist. If you are afraid that seeing a therapist will be used against you in court: it will not. Quite the

opposite is true.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Phase 2: Filing of divorce/custody suit

As you can see, there is a lot to consider before filing for divorce, but once you are ready, the next step is

to file a petition with the court. Please note that once a petition has been filed, there is a minimum waiting

period of 60 days from the date of filing to the time that the parties can be divorced.

PETITION

The attorney files a document called the “Petition for Divorce” or the “Petition in Suit Affecting the Parent-

Child Relationship.” This is the document that begins the lawsuit, and lays out the basics of the situation

and of what you are asking for. This is usually filed electronically with the court clerk.

If the judges in that county have created a Standing Order, then that Standing Order is attached to the

petition. A Standing Order is an order that all of the local judges have approved, which sets out how the

parties in a family case, divorce or custody, must and must not act. Essentially, it is telling the people in a

lawsuit how NOT to look bad in front of a judge. It includes provisions that explain that the parties to the

lawsuit that they must behave as normal human beings should. It includes things like ‘you may not change

the locks on the house’ or ‘you may not remove the other person from a bank or credit card account’, or

‘you may not hide the children from the other person.’

It may take the court clerk anywhere from a few hours to a few days to process this petition. Once it is

processed, the clerk prepares the paperwork so that the petition can be given to (or served on) the other

party.

SERVICE

This part of the process everybody has heard of: the dreaded “getting served with papers”.

Formally, “Service” or “Service of Process” is the procedure in which a party to a lawsuit gives formal

notice of the start of a lawsuit (divorce, paternity, custody suit, etc.) to the other party, so that the other

party is given the opportunity to respond and participate in the lawsuit.

There are two types of service, private and constable. You can choose to have a constable or police officer

serve the petition (with the standing order) on the other person, or you can have a private process server

serve the other person. Where you choose to serve the other person, and who serves them, can be

strategic decisions. For example, if you are trying to get custody or get divorced with minimal conflict,

then you probably do not want to have a police officer show up at the person’s work to serve them in

front of all their coworkers. Obviously this could be very embarrassing and may cause unnecessary

conflict. On the other hand, if the other person is already behaving poorly, such that you need an

immediate restraining order, then having a police officer serve them sends a very clear statement.

Who you choose to have serve the document and where you choose to have them served may also

depend on the circumstances of your case. If the other person has refused to tell you where she moved

to, then you may not have a choice but to serve her at her work, because that is the only place that you

know she’ll be at. A private process server generally tends to serve more quickly and is willing to go to

more effort to try to find a person.

Both methods tend to cost about the same amount of money.

Sometimes, it may be advantageous to tell the other person what you are doing, because you are working

out the details together. However, other times, when the parties are already in serious conflict, you

specifically do not want to tell them that you have filed a petition and that they will be served. Even when

it seems clear that the person wants nothing to you with you, they will take steps to make everything as

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

difficult as possible. Sometimes, the worst thing you can do is tell the person that you have filed for

divorce, because then they avoid being served. They will stay at someone else’s house, they will take

leave from work, they will have family and friends lie about their whereabouts.

Don’t worry though, because if it becomes clear that a person is avoiding service, that does not stop the

divorce. The process servers will work with your attorney to be sure that you get the other party served,

even if not in the traditional way. There are several ways to get alternative service on the other party;

however, it does mean that your attorney will have to request permission from a judge to get this

documentation and information to the other party. This can be done in a variety of ways, depending on

what the law allows and what is the manner most likely to get this information to the other party. For

example, when we have confirmation that the person lives at a particular location, it can be posted on the

door. Other times, the court has authorized us to give it to a member of that person’s family. I once

served an opposing party through Facebook. I served another through the opposing party’s grandfather

(he tried to claim he had never heard of his own granddaughter). I even had a person served when she

was going to her dog’s veterinarian. You can run, but you can’t hide.

On many occasions, I have had the person refuse to take the divorce or custody papers from the process

server, but that does not change the fact that they were served, whether or not they took the papers. I

have also heard people complain that they did not think that they were really served, because they were

served in a Walmart parking lot. Guess what? It still counts. Do yourself a favor: if you are served with

papers, accept them gracefully and immediately contact your lawyer. Do not bother reading the details

in the papers, they are there either for legal reasons or to get your goat. Just let your attorney handle it.

However, you should look at them to see if there is a court date scheduled, because you do NOT want to

miss that court date!

Once the person has been served, then the process server and/or your attorney will make sure that the

proof of service on the other party has been filed with the court.

How a person reacts to being served with a lawsuit varies as much as anything else. Some people just

accept it. Others become angry.

If the opposing party is the type to get angry, then be emotionally prepared for the nasty voicemail, text,

email or visit.

NOTES FOR DISCUSSION WITH YOUR ATTORNEY

If you are concerned about your safety or that of your children, then this should be discussed with your

attorney BEFORE you file for divorce/custody, so you and your attorney can strategically plan this in a way

that assures your safety. If there are safety issues or issues that must be resolved quickly, then you and

your attorney may need to discuss whether an emergency protective order or an emergency temporary

restraining order needs to be obtained and served on the other party with the petition.

ANSWER

Along with the petition that the other party was served with, were instructions that she has been served

with a lawsuit, and that she must answer within a specific period of time. An Answer is a very simple

document that says who is responding to what lawsuit and that you are requiring the person who filed

the lawsuit to prove the claims he or she made in the Petition. If the case is filed with the district clerk,

then she should file an Answer by 10:00 a.m. of the Monday after 20 days from the date she was served.

In any case, if you have been served with a lawsuit, always look at the documents to determine the date

by which you need to file an Answer. Note that if you do not respond within 60 days, your spouse can go

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

to the judge to get default orders entered, which means you are divorced and your spouse gets whatever

they can get the judge to agree to (which is usually just about anything).

Often people call my office stating that they have been served, and they are very nervous because they

have to answer. However, a family case is a bit different than other types of lawsuits in Texas. As long as

you answer before the person has obtained a final judgment, the judge will accept your Answer (and the

judge will not let the person get an order without your signature approving the order or without your

appearance in court for trial or your signature on agreed final orders).

WAIVERS OF SERVICE

If the parties are more cooperative and open about their need for a court order, then the filing party may

give the other party a waiver to complete and sign instead of having them served by a process server.

It is imperative that you read the waiver carefully!!! There are two types of waivers: one in which you

simply state that you have received the petition, and another in which you waive (or give up) all of your

rights in this lawsuit.

I do not recommend that anyone ever sign a waiver which states something to the effect of “I waive all

my rights in this case.” Even if you do not wish to fight the person about this lawsuit, you want to make

sure that you are not saddled with all kinds of debts, responsibilities, and liabilities that you never even

knew about (for example: child support). That is a sure way to end up facing the possibility of jail someday

when you least expect it. This is all too common with good fathers: they feel that the divorce is their

fault, and they feel that the best thing they can do is just roll over. Speaking from experience, a divorce

is not the time to let your spouse make all the decisions that will affect you for the rest of your life. Stand

up for yourself, and if after careful consideration you want to make concessions during the divorce, you

will have that choice.

It is also important to realize that if the other person 1) has signed a waiver and signed an agreed divorce

decree ; or 2) they were served but did not respond, and you plan to get an order signed without that

person’s participation; then the waiver must be in the court clerk’s file for a minimum of 10 days before

a divorce can be finalized.

Phase 3: Temporary Orders

Some people think that a divorce is a one-step process, where all the decisions are made at the end. In

reality, there is a lot that can be changed right away.

WHAT ARE TEMPORARY ORDERS?

A temporary orders hearing is needed when the parties cannot come to an agreement on timely issues,

such as who continues to live in the house, who gets the children when, who makes what decisions about

the kids, who pays how much to help support the children, who pays what bills, etc.

This hearing is your opportunity to present your side of the story to a judge and get some orders in place

quickly. After both sides have presented their requests and arguments, a judge will make those decisions

for you.

These orders are called temporary orders, because they are not permanent or final. HOWEVER, it is quite

common for the contents of temporary orders to become the permanent orders (see Status Quo), so it is

important to understand that a lot of preparation and work goes into the temporary orders, in some cases

as much as for the final orders.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

PREPARATION FOR TEMPORARY ORDERS HEARING

From the moment that you first hired your attorney, through the petition and service process, you should

be preparing for the temporary orders hearing.

After you have returned all the documentation your attorney has requested, you should expect to spend

several hours with your attorney preparing for this hearing. Your attorney should explain to you how

everything will work. They will review what she will (or will NOT) ask or say. This is the time to review

your goals and what you feel is important to be brought to the judge’s attention. Your lawyer will explain

likely objections, what happens when someone objects, and have you practice testifying.

WHAT IS NEEDED FOR HEARING

WITNESSES

Quiet often, the only witnesses during a temporary orders hearing are the parties themselves. This is

because the witnesses must have personally observed or experienced something that is relevant to the

case.

Sometimes, if a parent of one of the parties lived with the parties or personally observed a fight or an

incident with a child, then that parent might be asked to come to court to describe what s/he saw. I have

had a mother testify for her daughter-in-law (against her own son), because she had seen her son under

the influence of drugs and she had witnessed her son being physically violent, putting her grandchildren

in danger.

Sometimes, an accountant might be a necessary witness, if one spouse has no idea about the finances of

the marriage, and the other party refuses to provide such information.

Other times, a police officer may be called to testify as to what happened at a particular incident between

the parties or with a child.

If you have other witnesses you plan to have come to court to testify on your behalf, some of them may

require to be subpoenaed. What that means is that they are ordered to appear and testify for this hearing.

In Texas, an attorney can issue such a subpoena without having to get a judge’s approval.

CHILDREN AS WITNESSES

The courts discourage bringing children into adult fights such as a lawsuit. Even if the child witnessed an

event, if the child is under the age of 18, you are highly discouraged from bringing that child to court. See

Chapter 3 for more detail on children’s preferences and involvement in court proceedings.

PROPOSED REQUESTS

This is a document that you and your attorney prepare to make the judge’s job easier. This is a summary

of what decisions you are asking the judge to make. This includes items such as:

• who gets the exclusive right to possession of which residence and which vehicle,

• who pays what bills,

• what kind of custody each parent should have (i.e. joint or sole),

• who gets the children when and where,

• when and where are the children exchanged,

• whether there are conditions on any parent’s access to the children,

• who pays how much child support,

• who provides medical insurance for the children and the spouse,

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

• who pays for medical insurance, etc.

PROPOSED SUPPORT DECISION

This is a document you and your attorney prepare to provide your income information to the judge. Both

parties are expected to provide this documentation, no matter who is requesting whom to pay child

support or spousal support. This document will summarize your income, your actual withholdings (for

taxes, social security, Medicare, and insurance), the deductions that the law allows you to take, your

household budget for you and the children, the monthly amounts you pay on your debts, and the amount

of child support that the guidelines state you should pay if you are ordered to pay child support.

You should include your last couple pay stubs to attach to this document. You should expect to sign this

document, stating that it is true and correct.

THE HEARING DAY

On the day of hearing, you may have a lot of waiting to do, depending on the court you are in. You are

expected to be on your best behavior. You need to dress to show respect to the Court. That means that

you dress nicely. For some, that might be a suit. For others that is jeans with no holes, dress shoes and a

button-down, long sleeve shirt. You should never wear shorts, flip flops, clothes with rips or holes, or

clothing with offensive images, symbols or sayings. Your hair should be neat and trim. Any tattoos should

be covered up. You want to present the best image possible to the judge, so that you give yourself the

most advantage you can. And if you have witnesses, you should make sure that they are on their best

behavior as well, because their behavior reflects greatly on you!

Similarly, you should plan to show up early for court, giving yourself plenty of time for traffic, to find

parking, to meet your attorney, and for any general mishaps.

When the judge first comes out, he or she will essentially do a roll-call (“docket call”) to see who is present

on each case that is scheduled for that day, who is ready to for a hearing, and how long you expect the

hearing to take. If there are a bunch of cases called before yours, then you can expect to wait until those

cases are done before the judge will hear your case.

When the judge comes into the courtroom, you should immediately stand and stay standing until you are

told you can sit. Anytime you are addressing the judge or anyone in the entire courthouse, you should be

extremely respectful (even if, and especially if, they are not respectful to you). You should never interrupt

the judge. You should never make negative comments, grunts, noises, eye-rolls, nasty facial expressions,

or gestures at or towards the opposing party or the opposing counsel, especially when someone else is

testifying. If your ex or soon-to-be-ex is testifying about something horrible, do NOT smile or laugh, even

if it is a boldfaced lie! If you are unable to control yourself during a hearing, then that tells the judge a lot

about your inability to control yourself with the person you are fighting in court. Specifically, it destroys

your credibility as a reasonable person, and improves the credibility of the other person.

Travis and Bexar Counties

Travis and Bexar counties handle their cases much differently than other counties. If your case is in Travis

or Bexar counties, then you will have a very large docket call, for all the family cases to be heard by all

judges that day. Again, they tend to be listed generally in the order they will be heard. After the docket

call, you must attend the docket call to find out which judge you have been assigned, where the courtroom

is and when it will start, though you might still have to wait a while to find out. Usually, you find out what

judge will hear your case only when you find out that the judge is ready and waiting for you. The

advantages to this system are that you can usually get in to see a judge much more quickly than in other

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

counties, and you usually get more time than other counties and judges can allow. The disadvantage is

that you do not know in advance who the judge is, so your attorney cannot tailor the presentation to the

judge. I have generally found the Travis and Bexar County systems to be much more efficient and helpful,

because they allow for a quicker resolution.

Once assigned to a judge, you and your attorney will sit at one table facing the judge, and your spouse or

ex and his/her attorney will sit at the other table facing the judge. The judge will sometimes speak off the

record to the attorneys first to find out generally what the issues and requests are in the case. Then the

judge will begin the proceedings. The attorneys may give a formal opening argument, or sometimes not.

The party who began the lawsuit will present their side of the story first, by calling their witnesses. Each

witness will be questioned by the attorney who called him or her. Then the other attorney will have the

opportunity to question the witness. Then, the first attorney will have the opportunity to ask any

additional questions for clarification. There may be some additional back and forth questioning, and the

judge may even ask some questions. Once the attorney who filed the lawsuit has called all of his/her

witnesses, then the other attorney will be given the opportunity to call each of his/her witnesses. Once

all of the witnesses and evidence have been presented to the judge, then the judge usually announces

his/her decisions on the issues requested.

Once the judge has announced his/her decisions, then it will be the attorneys’ jobs to make sure that the

orders are put into writing. It often takes a couple weeks for the attorneys to draft, review, comment on,

and approve the orders as written. Then they are presented to the judge for signature. It is important to

note that the judge’s orders go into effect immediately, and you should immediately begin following

them; however, they cannot be enforced until they are put into writing and signed by the judge (see

Enforcement).

After temporary orders are either agreed to or ordered by a court, it takes some time to see if that

particular arrangement is going to work out well for the parties and the children. Sometimes, there is a

stair-step visitation schedule where one parent gradually gets more time with the child. Sometimes, the

child needs to go to therapy and a third party needs to provide an evaluation after a certain amount of

time. Temporary Orders do not expire on a certain date or after a certain amount of time. Though they

are called “temporary”, they can be the court orders for years.

Phase 4: Discovery

Discovery is the process and procedures in which the parties to a lawsuit obtain information about the

parties and the lawsuit.

It is incredibly rare when both parties have all of the information they need to finalize a case at the

beginning of the case. This usually tends to occur only when the parties are being fully cooperative and

are sharing information freely.

TYPES OF DISCOVERY

Sworn inventory and appraisement

One type of discovery which is often done in a divorce is called an Inventory. This is where each party

signs under oath documenting all the details on each and every asset and debt of both community

property and separate property that they are aware of. Then both parties exchange these signed and

sworn inventories to obtain a full picture on all of the assets and debts that need to be handled during the

divorce. Often times, this may be the only type of discovery that the parties do, because they do not feel

the need or have the money to go through full written discovery as described below.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Full written discovery

Another method of discovery is a series of requests for information. Usually, parties only send the first

three of the four listed below. When these requests are sent, responses are required within 30 days.

There are consequences, such as losing the ability to object to requests, that may occur if the answers are

not provided in the required timeframe.

This process can be very time-consuming, both for you and your attorney, so you want to be sure to move

as quickly as possible in providing the information to your attorney. You also want to be sure to be very

thorough in your answers to your attorney, and then discuss with your attorney what you may be

uncomfortable about.

Because this is a time-consuming process, it can be expensive. Many times, parties choose not to go

through this formal process, and may decide to exchange information informally instead.

Rule 194 Requests for Disclosure

These are standard questions and information that are specified in the Texas Rules of Civil Procedure that

allow both parties to be given the basic information that would be required for the lawsuit, such as who

are the parties, who are the people who have information about this case, who are the experts in the

case, what are the legal and factual reasons and arguments you are making on this case, etc.

Interrogatories

This is a series of (usually) up to 25 questions that you are expected to answer about you, the other party,

the children, the property, and any extenuating circumstances. These vary dramatically between cases,

depending on the circumstances of each case.

In answering, your attorney may choose to object to and not answer certain questions; however, you

should provide all of the information you are aware of to your attorney. Then if you have concerns about

sharing any of the information, you should discuss it with your attorney. It is always better to provide

more information, and honest and complete information to your attorney – then your attorney will work

with you to explain what should be provided and in what manner, and then to provide the answers to the

other side.

Requests for Production

These are a series of questions for which you are required to produce any and all documentation that you

have, or that you have access to. These are not limited, so there can be quite of few of these. These tend

to take a lot of time to gather, let alone for your attorney to review, redact, and object to or answer.

Requests for Admission

These are a series of questions that you are required to “Admit” or “Deny.” If you do not answer the

Requests for Admission within 30 days, then the court can assume that you admit to each question.

Subpoenas

Third parties can often have information relevant to a case, and to obtain this information, they are

required to be served with a subpoena to order them to provide any documentation and/or witnesses to

testify at a hearing or trial.

Items that are often subpoenaed might be the child’s school records, a video at a store where an incident

occurred, a person’s employment records, the police report with the officer at the scene, Child Protective

Services caseworker with the redacted CPS records.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Depositions

Depositions are rare in family law cases in Texas, probably because they are expensive and require

considerable coordination, and because often the parties already have some testimony from the opposing

party from the temporary orders hearing. A deposition is where a witness is required to testify under

oath, with a court reporter recording and/or documenting everything that is said and presented. This is

done outside of court, without a judge present, but both attorneys and both parties are normally present.

The parties are allowed to ask almost anything of the witness, and the witness is required to answer

everything truthfully. It is quite possible that not everything will be allowed in court; however, the party

is required to answer nearly every question. This is a great opportunity for a party to find out exactly what

the other party is requesting, why, and to be able to nail them down on answers to certain questions. The

answers a witness gives during a deposition may be used against that witness when they testify in court.

Phase 5: Mediation

Judges love when parties come to an agreement without having a trial! Mediation is highly encouraged

and very often required in Texas courts. I have also found it to be extremely successful and most beneficial

for my clients and their families. This is a process in which a neutral, third-party mediator helps the parties

work out a solution to their issues which both parties can agree to. In my experience, when the parties

can come to an agreement on the issues, there tends to be less conflict in the future, and the families

tend to adjust better and faster to their new circumstances.

Mediations can be done a number of different ways; however, the method that is most common in family

cases in central Texas is where the wife and her attorney are in one room, the husband and his attorney

are in another room, and the mediator goes back and forth between the rooms. Most times, the parties

do not even see each other. Friends and family members (even new spouses) are generally not allowed

in these mediations, because they can often side-track or even completely derail the negotiations. I have

found that though mediation is stressful and emotionally draining, it is significantly easier for the parties

to not have to directly interact with each other at all. I also find this method helpful, because the parties

and their attorneys can have honest, unguarded conversations. Another advantage of this method is that

the parties can disclose important, confidential information that the mediator needs to know about the

situation, and the mediator can either keep that information in mind when negotiating or share it with

the other party, depending on whether the person allows that information to be shared or not.

Unlike trial, where the attorney is in charge and the client takes a back seat, mediations tend to be client-

led and attorney-guided. In other words, the mediator talks mostly to the client, and the client tells the

mediator what he/she wants. The attorney may have prepared an initial offer in advance and with the

assistance of the client, but generally the attorney is there to provide the legal advice and guidance. The

attorney is also there to let the client know what is likely to happen in court if they have to go, so the

client knows what is reasonable or not.

All parties are expected to go into mediation in “good faith.” That means that you have to be willing to

compromise. If a person is not willing to give up on anything they want, then they are not participating

in good faith. That wastes everyone’s time and money, and does not look good when it is presented to

the court.

It is also important to keep in mind that you are going to be appalled by the opposing party’s first offer.

It is probably going to be insulting and infuriating. This is when you use all the tips your therapist has told

you about to control your emotions and get back to a brain that is functioning using reason, not fear. And

yes, I highly recommend that every person going through divorce or custody matters seek and listen to

guidance of an experienced, helpful therapist, if not for yourself, for the sake of your children or the others

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

around you that you care about. A team of an excellent therapist and an excellent lawyer can be very

powerful and can help you look past the emotions and start to figure out what is most important to you,

your children, and your ex. Then through careful negotiations, this team may be able to figure out a way

to help you get what you need most and give the other person some or all of what they need most,

working to an ideal agreement.

The contents of mediations (and settlement negotiations which are appropriately labeled) in Texas are

confidential. This allows people to go out of their way to try to work out an agreement with no risk. For

example, you can make an offer in a mediation that is incredibly generous, and if the other side still refuses

it, they will not be allowed to use that against you during trial. So you will not hear: “Well, he was willing

to give me full custody in mediation, and pay me $2000/month in child support, so I want that now.” The

idea behind this is that though you may have been willing to do that to avoid trial, it cannot be held against

you later when you’re stuck with trial because the other party was not reasonable.

The other great thing about mediations in family cases in Texas, is that if you get to an agreement, neither

party can revoke the agreement. So when you have spent a half to a full day working hard to get an

agreement, all parties and their attorneys sign a Mediated Settlement Agreement (“MSA”). The MSA puts

the agreement in writing, and the parties are held to their agreement. Though the MSA usually has the

basics of the agreement (some are more detailed than others), the courts still require the agreement to

be put in the form of an Order. So, once the parties have an MSA, then it is up to the attorneys to draft

the final order, working out all the details. Though it has been tried, it is very rare for a party to have a

final trial and get an order that does not follow the MSA.

How do you know when you have a good agreement? Most mediators will say, if it is something that you

can live with, then you should go with it. If you can’t live with it, then you should not agree to it. However,

keep in mind that “live with” is different from “want.” You are not going to get everything you want.

That’s not the way life works. However, the ideal agreement is when you get the things that you want or

need most, and you let go of the issues that you care about less. It’s about compromise. You also have

to keep in mind that if you were to take the case to a judge, you will also receive some sort of compromise,

and that may or may not be in your favor.

Every once in a while, I have had friends or family members of clients tell me that they thought my client

could have gotten the same deal without an attorney; however, they were not present in the middle of

the heat of those negotiations. Outsiders do not know all of the issues that have been raised and dealt

with; they do not know what is most important to you; they do not know what issues you were willing to

let go of; they do not fully understand the risks you may have been facing; they are not the ones who

would have to air all their dirty laundry in public; they are not the ones who would have to pay for a trial.

Most importantly, they are not the ones who have to live with the outcome. With trial, you can never

guarantee an outcome, but with mediation, you know exactly what the outcome is.

The other wonderful thing about Texas courts is that they generally will approve anything the parties

agree to, as long as the judge is convinced that the agreement about property contains a ‘just and right”

division of the property, and the agreement about the children is in the “best interest of the children.” In

my experience, the judges briefly review the agreements and approve the agreed orders, particularly if at

least one lawyer has been involved in the creation of the orders.

Phase 6: Final Trial

Final trials are rare in Texas. Part of that is due to the fact that most Texas courts require mediation. Part

of that is due to the fact that if you have been to trial once, most people do not want to go back. That’s

because trials are incredibly stressful and costly, in terms of time, energy, emotion, reputation and money.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Once you file for divorce, there is a minimum of 60 days that you must wait before your divorce can be

finalized. However, it is usually much longer than that. In a custody case or modification case, there is no

waiting period. When I practiced in Illinois, I saw that the average divorce took 18 months to 2 years,

which is a very long time to be in tumult. However, in Texas, the judges encourage the parties to finalize

their cases as quickly as possible. In my experience, Texas judges generally do not want to see a divorce

or custody case last a full year or longer, unless there is a very good reason. One such reason might be to

give a parent or a child time to complete a rehabilitation or therapy program, do a stepped-up visitation

program, and/or have a third party evaluate the situation to determine what would be in the best interests

of the child.

The preparation for a final trial is significant. After the discovery process has been completed and the

parties have attempted mediation, if there is still no agreement, then the parties have to finalize the case

by having a trial. The final trial is going to look much like a temporary orders hearing, except that there

are more deadlines and a few more requirements.

PREPARATION FOR FINAL TRIAL

REVIEW OF DISCOVERY PROVIDED BY OPPOSING PARTY

The first thing that you and your attorney should do as soon as it is received is review the discovery

responses provided by the opposing party. This is important because it gives you an idea of what requests,

arguments and evidence the opposing party is planning to present. It can also give you a good idea of

what claims they are going to make against you and what evidence they have to support those claims. In

any case, you may change tactics, bring in additional evidence or witnesses, and refocus the emphasis on

your story.

DOCUMENTED EVIDENCE

It is important to understand that not everything can be presented in trial. If you watch any courtroom

drama TV shows, then you have probably heard the word “hearsay.” Hearsay is defined as “a statement

made out of court that is offered in court as evidence to prove the truth of the matter asserted.” Hearsay

is not allowed as evidence in court. This can be a confusing topic, even for lawyers. So for example,

people can only testify about things they have personally seen, heard or experienced. People cannot

testify about things that others’ have told them about. So if a parent wants to testify in court that the

child should live with him, because the child told him, that is hearsay and not proper evidence. On the

other hand, an exception to this would be if a person is telling the court what one of the parties in the

case told them. So, if the wife told a friend, “I took all the money from our joint checking account and put

it all in an account in my name, so that he couldn’t get to it.”, and the friend wants to testify that this is

what the wife said, it would be allowed in court.

Similarly, for documents, if a party wants to bring in bank statements from the mail to show who spent

what and where, it is hearsay. Or if a party wants to show the drug test results and tries to introduce the

test results that he received, that is hearsay. There are exceptions to the hearsay rule, such as for

“business records.” So, if there is a business records affidavit signed by a bank employee stating that

there are x number of pages and these are the bank statements for John and Jane Doe’s joint checking

account from this date to that date, then those records are admissible in court. Similarly, if you have an

expert from the drug testing company come to testify about the drug testing process and the results, then

the report and the testimony would be admissible.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Any documentation that a party plans to use at a final trial is usually required to be given to the opposing

party (if discovery was done) and sometimes, it is required to be filed with the court clerk a certain number

of days prior to the trial.

SUBPOENAS FOR WITNESSES AND WITNESS PREPARATION

If you plan to have witnesses besides the parties, then the attorney will probably need to send them a

subpoena far enough in advance for the witness to coordinate with their work and family. Additionally, if

at all possible, you want to be sure that there is enough time for that witness to meet with your lawyer to

prepare for trial.

PRETRIALS (PROPOSED REQUESTS, SUPPORT DECISION, PARENTING PLAN)

In the section on Temporary Orders, we discussed the fact that you need to present 1) proposed requests

(called Proposed Disposition of Issues) and 2) proposed support decision. For final trial where there are

children, you also need to submit a third document: proposed parenting plan.

Three items that make up the “Pretrials”

• Proposed Disposition of Issues (proposed requests)

• Proposed Support Decision (income, budget, and child support amounts)

• Proposed Parenting Plan (if there are children)

The first two items are described above in the section called Temporary Orders. The parenting plan is

where each parent makes their request for the parenting issues they want:

• Are the parents Joint Managing Conservators or is one the Sole Managing Conservator?

• Which parent has what rights?

• Who gets to see the children on particular days?

• Under what circumstances does each parent get to have time with the children?

• How and where do the parents exchange the children?

• Who pays how much child support?

• How is the child support paid?

• Who provides the medical insurance?

• Who pays how much for the medical insurance?

• Who pays for uninsured medical expenses?

In Travis County, if you do not file these three documents with the court clerk by a particular date, then

you are put at the end of the line on the day of trial, and risk not being able to have the final trial on that

particular day. Other counties may not be as strict, but these documents are very important and very

helpful for the judges.

SETTING AND ANNOUNCEMENT

Texas law requires you to give the opposing party a minimum of 45 days’ notice of a final trial. This must

be given in a particular manner. Depending on how long your case is expected to take, you may have to

wait significantly longer than the 45 days just to get a date where the judge can set aside enough time to

hear your case. Furthermore, you are almost always required to try to get an agreement with the other

party on the date and time that the final trial will be held.

In many counties in Texas, you or your attorney must also contact the court a certain number of days

ahead of time to confirm that you do indeed intend to have a trial, and how long you expect it to take. In

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

some counties, such as Travis, you can be punished for not doing this, by again being sent to the end of

the line (even if you were the first person to set a trial for that date).

JURY TRIAL

Texas is one of the few states that will allow a party to have a jury trial on a family matter, such as divorce

or custody. This is even more rare than a final trial itself, because it takes much more coordination and

because it can be an even bigger unknown risk.

JUDGES

In the more populated counties in Texas, your divorce or custody temporary orders hearing will almost

always be heard by an associate judge. This is a judge who only hears family cases. An associate judge is

appointed by a local committee. A district judge is an elected official. An associate judge reports to and

is supervised by a district judge. The decision of an associate judge can be appealed to a district judge,

but this must be requested within 3 business days of the associate judge’s ruling. This is called a “de novo

appeal”, which means that you get a do-over for your trial. If you ask for it, you get it – there are no

requirements other than an associate judge heard your case. Most courts will force you to have your

temporary orders hearing before an associate judge, unless you have a good reason for requesting a

district judge. However, because the courts to not want to cause uncertainty for final orders, for this

reason, most parties will request that a district judge hear their final trial.

DEFAULT JUDGMENT

Sometimes you have served the other party (given them official notice of the case), but they choose not

to work with you to finalize the case. Sometimes, the person is long gone and has no intention of coming

back. You can still divorce this person. And you can still get new custody orders for the children. However,

there are some extra hoops that need to be jumped through to assure the courts that you have taken

every step possible to reach and involve this person and that you are not taking advantage of this person

being deployed with the military.

If you follow the additional required steps, you can get a judge to sign your order without that person

showing up or agreeing to the orders presented; however, you still run the risk of your order being

“undone.” When the person receives notice in the mail that a final order has been obtained, if she makes

an argument that she was not given notice or that it was unfair or that certain circumstances caused her

to not be able to get involved in the case, then a judge may decide to vacate your order, or make it as if it

never happened. Then you have to reset your final trial and have a contested trial anyway.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Chapter 2 – Alimony, Spousal Support and Division of Property (Divorce)

Where does all the money go?!?

If you know someone who has gotten divorced in another state, their story is likely going to be very

different from yours! Texas has very different philosophies on spousal support and property division than

other states.

ALIMONY, SPOUSAL SUPPORT AND SPOUSAL MAINTENANCE

In many marriages, there is a difference in the amount of money each spouse brings in to the household.

As a result, when a couple divorces, it is often harder for the lower-earning spouse to support

himself/herself. It is even harder when one spouse has given up a career, even temporarily, to raise

children and support the family, and this spouse must now re-enter the workforce after a significant

period of time not working outside the home, and maybe the spouse must even re-educate before re-

entering the workforce. This disparity of income or even income-producing ability, is why most states

automatically require the higher-earning spouse to help support the lower-earning spouse for a significant

period of time. However, this is Texas.

In Texas, this support of the lower-earning spouse from the higher-earning spouse’s future income is

called spousal maintenance, but you might also hear it called alimony or spousal support. This is

completely separate from the division of the marital estate.

It is incredibly difficult to get court-ordered spousal maintenance in Texas. The reason for rarely giving

spousal maintenance in Texas is because according to the Texas courts, the marital estate is divided in a

manner that provides sufficiently for each spouse, accounting for this disparity. Essentially, you can get

spousal maintenance if there was family violence or if one spouse is disabled or otherwise truly unable to

work. Then, even if it is ordered, it may not be as much money as expected or last nearly as long as you

might think.

Eligibility for Court-Ordered Spousal Maintenance

First, the spouse requesting maintenance must prove to the court that there will not be sufficient

resources from the division of property for that spouse to be able to meet his/her minimum reasonable

needs.

Next, the spouse requesting maintenance must prove one of the following:

• The spouse being asked to pay maintenance was convicted of or received a deferred adjudication

for a criminal offense equating to family violence against the spouse requesting support or that

spouse’s child; and

o The violence occurred within two years before the petition for divorce was filed; OR

o The violence occurred during the divorce process.

The spouse seeking support:

• Has an incapacitating physical or mental disability which prevents him/her from earning enough

to provide for his/her minimum reasonable needs; OR

• Has been married for 10 or more years to this person and does not have the ability to provide for

his/her minimum reasonable needs; OR

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

• Is unable to work enough to provide for his/her minimum reasonable needs because s/he cares

for a child of the marriage who requires substantial care and personal supervision due to a

physical or mental disability.

Once a court determines that a person is eligible for court-ordered maintenance, then the court looks at

many different factors to determine the nature of the support, how much support should be provided,

how often, and for how long. A few of these factors include the educational and employment background

of the person seeking support, the duration of the marriage, the contribution of one spouse to the

education, training or increased earning power of the other spouse, the effect of child support, and more.

It is important to note that the court will first assume that spousal maintenance is not required. So that

means that the spouse requesting support must show either that s/he has reasonably tried to earn enough

income to meet his/her reasonable minimum needs or that since the parties separated and during the

divorce process, s/eh has tried to develop the skills necessary to earn enough income to support

himself/herself.

Important Note: A person will NOT have a better chance at getting spousal support if he quits a job to

become “unemployed” or voluntarily chooses to be underemployed. In fact, a deceit like that will

probably make the judge very upset and end up with some unintended and undesired consequences.

Duration of Spousal Maintenance

The courts are ordered to limit the duration of support to be the shortest reasonable time period, unless

the spouse is unable to provide for himself or herself due to reasons such as disability or caring for an

infant or disabled child. Generally speaking, how long the support will last depends on how long the

parties were married. If the parties were married for less than 10 years and there was family violence, or

the parties were married for 10 to 20 years, court-ordered support cannot be for more than 5 years. If

the parties were married for 20 to 30 years, then support is maxed out at 7 years. If the parties were

married for 30 or more years, then support can be provided for up to a maximum of 10 years. It is also

important to note that this support can be modified later as needed, if the circumstances of the parties

significantly changes.

Amount of Spousal Maintenance

The court can order spousal maintenance that amounts to no more than the lesser of these two choices:

• $5000/month or

• 20% of the spouse’s gross monthly income.

Enforcement of Spousal Maintenance

Like child support, if a person ordered to pay spousal maintenance does not do so, then the court can find

that person in contempt, order him/her to pay fines, and even send him/her to jail. It is important to

remember though that if a person has stopped paying support, they are probably having financial issues,

and as such, they may request that the court reduce or eliminate the support.

Contractual Spousal Alimony

Contractual Spousal Alimony is spousal support that a spouse agrees to provide to the other spouse after

the divorce, even though there is not necessarily any court-required reason provide such support. As with

most provisions in a divorce decree, if the parties agree to a provision, then the judges will approve it.

What that means is that if the parties agree that one spouse will provide support for the other spouse,

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

then they can do that. So for example, if a wife is willing and able to pay the husband who was the stay-

at-home dad $4,000 per month for 10 years after the divorce, they can put that in writing in their divorce

decree and the judge will sign it.

Parties may often agree to contractual maintenance if one person is self-employed, starting a business,

or unemployed while they get themselves established. Also, parties may agree to this if a spouse needs

to go to school to get training, a certificate, or a degree for a particular career. Another common reason

parties may also agree to spousal maintenance is to build the credit and income stream needed for a

spouse to obtain a mortgage or refinance a house.

However, it is important to note that there is no guarantee for contractual maintenance, because it cannot

be enforced by contempt, like court-ordered maintenance. In other words, the court cannot order the

person obligated to pay fines or go to jail if they do not pay. They cannot enforce anything more than

what the court itself could have ordered.

Termination of Spousal Maintenance

Whether the maintenance is court-ordered or contractual, maintenance will end on the earlier of the

following dates:

The date a court order states it ends; or

The date of death of either party.

Texas law also states that, unless the parties agreed to something other than this, the maintenance will

end when:

the person receiving support marries someone else; or

the court makes a finding that the person receiving support has moved in with a person with whom they

are in a dating or romantic relationship.

Temporary Spousal Maintenance

The court can and does order temporary spousal maintenance much more frequently. Temporary Spousal

Maintenance is that extra support from the higher-earning spouse while the divorce is pending. This is

obtained at a Temporary Orders Hearing, usually within weeks after the start of the divorce process. It

then also ends when the parties agree, when the judge says it ends, or when the Final Decree of Divorce

is signed by the judge.

The requirements for temporary spousal maintenance are not nearly as strict and rigid as post-divorce

spousal maintenance. Essentially, if the court decides that one spouse does not have enough means to

support himself/herself, there is not enough money readily available, and the other spouse has sufficient

income to help, then the court will order that spouse to pay temporary spousal maintenance.

Additionally, if a spouse has been at home and needs to finish or even begin an education or training

program to enter or re-enter the workforce in the future, then the court may order temporary spousal

support while the divorce is pending. The reason temporary spousal maintenance is so easy to obtain is

because while the parties are still married, all of the property belongs to the community, so both parties

should have equal access to the entirety of the community funds.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

PROPERTY DIVISION

Who gets what property and how do we divide everything?

As I mentioned before, Texas does everything a bit differently than the vast majority of other states. In

Texas, property is classified into two types, community and separate property, depending on when and

how the property was acquired.

When a couple marries, they accumulate what is called Community Property. Community property is

anything that is earned, acquired, purchased or obtained during the marriage. This applies to property as

well as to debt. It does not matter whose name is on the title or on the loan. What matters is when the

property was acquired or the debt was incurred. If the couple buys a house during the marriage and puts

the title in the husband’s name only and the mortgage in the husband’s name only, the house is still

community property and the mortgage is still community debt. If a husband has a 401(k) from his

employer, only his name is on the account, but it is still community property.

Texas also has a kind of property called Separate Property. Separate property (or debt) includes property

(or debt) that was:

• acquired prior to the marriage,

• received as a gift,

• inherited, or

• awarded as damages for pain and suffering from a personal injury lawsuit.

Additionally, it is important to note that interest earned on separate (or community) property during a

marriage is community property.

Texas is also an “Inception of Title” state, which means that whether property is defined as community or

separate is determined at the time of its acquisition and by the character of the assets that were used to

acquire that property. I have had a situation where a couple went house-hunting, and the man purchased

a house a few months before the couple was married, and for the down payment, he used money that he

earned as well as some money that was given to him by his parents. Much to his wife’s dismay at the

divorce trial, this house was determined to be his separate property.

So let’s say that you inherited a piece of land while you were married. That is your separate property. In

the common situation is where a man purchases a house, he meets and marries a woman, and then she

moves in with him, we have determined that the house is the husband’s separate property, even though

they both live in it. But we’ll also discuss the concept of “Reimbursement” shortly.

Now let’s complicate things a little bit. You started working at a company 10 years before you married

your wife. You received and put money into the 401(k) since the day you started. You have now been

married for 10 years. The money in that 401(k) is both separate property and community property. The

money that was put in prior to marriage is separate, and the money put in since the date of marriage is

community property. Also, any interest earned on the 401(k) investment during the marriage is also

community property.

Let’s try another. A man buys a house with $30,000 down and has a mortgage on it; he meets and marries

a woman; the wife moves in; the wife’s income is used to pay the mortgage on the house for 10 years;

now the couple divorces. The house is separate property, but the community (and therefore the wife) is

owed money back for payments on the house made with community income. This is called

Reimbursement This one actually gets even more complicated though, because the law says that the

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

community is reimbursed only for the difference in the principal balance (in other words, the interest paid

does not count).

A common situation is where your wife has student loans from before you married. It is possible that she

paid off the loans with money she inherited from her grandfather. In that case, the debt was separate,

and the debt was paid off with separate property. That is very clean. However, let’s now say that the

payments she made on those loans were made with money she earned during the marriage. That means

that she paid off separate debts with community property, so at divorce, she needs to reimburse the

community for the amounts paid with community funds.

It is important to understand that in the case of divorce, the courts start by assuming that all property is

community property. It is up to the owner of the separate property to prove that it is separate property.

There is another issue called comingling. This is where the property was separate property, but it has

been so mixed in with the community property, that no one can tell that apart from the community

property.

One example of comingling would be when a husband received some money about 15 years ago as an

inheritance from when his grandfather passed away. The couple put that money into their joint bank

account and used it, mostly for daily living. It’s hard to say where exactly that money went, other than

for general spending. When they went to evaluate their situation during divorce, they didn’t have much

money to speak of. Essentially, that original separate property was considered to be so co-mingled that

it became community property. Furthermore, there was the issue that they had spent it, so it was not

recoverable either.

Another situation I encountered was where a wife received $1,000,000 in damages for pain and suffering

from a personal injury lawsuit. She put this into a new investment account in her name. This account was

invested well and earned interest. Each time that the account earned interest or dividends, the amount

of earned interest and dividends was automatically transferred into the couple’s joint bank account. This

was the perfect way to maintain her separate property and make sure that it did not get comingled.

Just and Right Division

Texas courts are required to divide property from a marriage in a manner that is “just and right.” That

sounds about as clear cut as you think. Most people and most courts tend to start with an assumption

that the property should be divided in half between the spouses. However, there are cases which explain

circumstances in which there could be an unequal division of the property. Such reasons might include

issues such as whether there was family violence, a disparity of earning power, how much and what type

of property is available to be divided, fault in the breakup of the marriage, fraud, health of the spouses,

education and future employability of the spouses, and many more. Even if the court do find a reason for

awarding a disproportionate division of the property, generally speaking, the courts tend to award only

about a 5% difference, so the division of property ends up being 55% and 45%, or in extreme cases

something like 60% and 40%. On the other hand, if the parties agree to something bigger, Texas judges

will likely simply approve the parties’ agreement.

Even if a court awards the community property to be divided 50/50 between the parties, that does not

necessarily mean that each piece of property will be equally divided. It may be that the husband wants

to keep the entirety of the retirement account, but the wife keeps the house with whatever equity it has.

It depends on the parties and their circumstances.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Retirement Accounts

As I’ve previously discussed, money that is put into a retirement account such as a 401(k) during the

marriage is still community property, despite the fact that it’s only in one spouse’s name. However, any

money that was earned prior to the marriage would be separate property. I have frequently had a worried

client ask me how that is going to be separated. With the assistance of the financial companies that

manage such funds and a special type of Order, called a Qualified Domestic Relations Order (or “QDRO”),

this can actually be pretty easy. The hard part is left to the managing company to figure out. In the QDRO,

we specify the date the parties were married, the date and details of the employee’s employment, and

generally how the funds are to be divided. Then the company actually figures out the financial split.

So let’s say that you have a 401(k) from a company that you’ve been working at for the last 30 years, and

you have only been married for the last 15 of those years. You have decided that you will split the

community retirement proceeds 50/50. So, the financial company will do the hard work of figuring out

how much of the 401(k) was your separate property based on the date of marriage. Then they will divide

the rest in half, so you keep 50% and your ex receives 50%. Your ex will then have several options for

what she wants to do with her share. She might decide to have it immediately distributed to her, at which

point she will incur taxes and a penalty for early distribution. She might decide to keep it in a retirement

account with the same company, and if she does, the company will actually move it into a separate

account in her name. She may decide to do some variation of both of those choices. In any case, when

dividing retirement accounts, it is important to talk with an accountant to figure out what would be in

your best interest financially, given your specific goals.

Real Estate

Real estate can be another tricky issue. The keys here are:

Is the house going to be sold? If so, how will the proceeds be divided?

Is someone going to keep the house?

Can the person keeping the house afford the mortgage and taxes?

Can the person keeping the house refinance the mortgage?

Is one person going to stay in the house until the children finish high school?

What if one spouse is awarded money, but that can only be collected when the house is sold, and that is

not anytime in the near future?

If the house is going to be sold, what are the conditions? What if we can’t agree?

How much money is going to be spent on repairing the house or making it look good for sale?

The easiest situation is where the parties are able to sell the house before the divorce is finalized. In a

case like this, if the parties have decided how the proceeds will be divided, then the money can be

distributed as agreed upon the closing of the house. If they have not agreed on how the profit will be

divided, then the proceeds can be held in an attorney’s trust account for safe-keeping until the divorce is

finalized. The attorney has an ethical and legal duty to safeguard the client’s money, and the title

company will not normally agree to hold the money, so the attorney trust account is generally the safest

place for the money to sit.

I have had a situation where as part of the division of property, the husband owed the wife money, and

he was keeping the house. The judge ordered a lien to be placed on the house and the husband had to

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

make monthly payments until the money was paid out to the wife. The lien would then be released only

after the husband had paid the entire sum of money the wife was owed.

Probably the most common situation is where one spouse keeps the house and the mortgage as part of

the division of property and debt. Often both spouses are listed on the mortgage, but the spouse keeping

the house is unable to refinance. In this situation, in addition to the divorce decree, there are two deeds

that are prepared, signed and filed in the county deed records office. One deed gives the full ownership

of the property to the spouse keeping the house. This deed is called a Special Warranty Deed. The other

deed releases the spouse who is not taking the house from the responsibility of the mortgage. This is

called a Deed of Trust to Secure Assumption. This is not the ideal situation; however, because that

mortgage is still on both parties’ credit and if the person keeping the house defaults or is late on payments,

that can affect the spouse who has nothing to do with the house anymore. Furthermore, if there are late

payments or no payments, the creditor may still come after the spouse who is still named on the mortgage

despite having a signed Deed of Trust to Secure Assumption, because that was the deal you agreed to

when you received that credit. On the other hand, with being stuck with that possible responsibility also

comes the ability to foreclose on your ex-spouse, but that is probably an issue you would prefer to NOT

to have to deal with. So ideally, you would like for the person keeping the house to refinance. Unless the

person has been pre-approved to refinance, this is hard to be put in orders, because that person does not

necessarily have control over whether she can refinance.

Sometimes there are multiple homes owned by the parties and it works out that one spouse takes one

home and the other spouse takes the other home. They may still end up doing the two kinds of deeds for

each piece of real estate. Sometimes one of the parties may still decide to sell the real estate that they

took, because they really do not want to or can not live in that house, but that’s how they received their

fair share of the community property.

If the house is being sold, it is ideal to put all the details and conditions of this process into the divorce

decree. Will the parties have to agree to everything? How do they choose a realtor? What will be the

listing price? At what point will the price be dropped, and by how much? If the parties can’t agree, how

will a decision be made? Will the costs of repairs be split evenly or covered by one party? These are a

few of the issue that often arise. Sometimes, no matter how many details you put in the decree, the

house just isn’t sold according to the expected timeline. In those cases, the court can appoint a neutral

third party, called a Receiver, to make those decisions and get the house sold for the best price possible

in the time frame outlined by the court. I have been the Receiver in several post-divorce cases where the

parties just couldn’t agree on the details for selling the house, so they were stuck in a stale-mate. As a

result, I try to make sure that there is always a third party decision-maker, such as the realtor, who can

break a stale-mate between the parties.

In any property division, before you make any decisions or take a case to court, it is a good idea to talk

with your accountant or financial advisor to understand all of the financial and tax consequences of each

possible choice and division of the property and debt. You should make a financial plan for post-divorce

before you make any agreements for the divorce. This will help you in being able to make educated

decisions about property division. For example, it may not be your best move to take your share of her

401(k) as a lump sum, or you may need spousal support for the next 3 years so that you can qualify for a

mortgage on your own credit. Additionally, divorcing couples should understand the financial and tax

consequences of the different kinds of support, because spousal support and child support are treated

differently by the IRS. All too often, people are not focused on the long-term financial consequences of

their decisions and agreements, and are just focused on getting the divorce over-with.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Chapter 3 – Kids

Often the most contentious part of a divorce or break-up is the kids. This can also be a continuing battle

until the child is at least 18 years old (and sometimes even longer). When it comes to the children, the

main issues include the parents’ rights to make decisions for the children, possession of the children by

each parent, and payment of child support and medical support.

What most people refer to as “custody” is called “conservatorship” in Texas. What this means is, who

gets to get information and make decisions about the child, and what are the conditions and/or

restrictions on those decisions. There are certain rights and duties that parents have at all times, certain

rights and duties and that parents have when the child is with them, and then certain rights that can be

designated differently, based on the circumstances. Texas courts default to Joint Managing

Conservatorship, which means that most decisions must be made by agreement of both parents. The

opposite option is called Sole Managing Conservatorship, and this is where one parent gets to make those

decisions. Even when the courts designate the parents as joint managing conservators, one of those

parents is usually given the exclusive right to designate the primary residence of the child (usually within

a specific geographic region) and the right to receive child support. This is what most people refer to as

the “primary parent,” but this is not a legal term. The legal term, and the term that the Office of the

Attorney General uses is “custodial parent” or “home parent.” However, I will continue to use the term

“primary parent” in this ebook. We will discuss the differences and other options in more detail later in

this chapter.

CHILD SUPPORT

First, let’s discuss child support, as this is one of the first questions always asked. As discussed above, the

primary parent has the right to receive child support, which means that the non-primary parent is the one

who has to pay child support. The real question then is: How much child support am I going to have to

pay? The legislature has put together guidelines so that the amount a person must pay in child support is

predictable; however, it is important to keep in mind that this is where the court starts. The court will

calculate the guideline support and may increase or decrease the amount of child support, given certain

circumstances in a case.

The Courts calculate the guideline child support by taking the parent’s gross monthly income and

deducting federal income tax, social security and Medicare taxes, health insurance premiums, and union

dues to obtain a net income. Then the Courts use a chart with the total number of children this parent

has and the number of children in this particular case, to determine what percentage of the parent’s net

income to multiply by to obtain the guideline child support amount.

It is important to note that even though you may have additional deductions taken from your income,

whether or not you control them, those additional deductions such as 401(k), life insurance premiums,

employee stock purchase plans, vacation buys, extra withholdings, savings plans, etc. do not get to be

deducted in the calculation of your net income for child support purposes.

The guideline child support of a parent who has only one child would be 20% of her net income. However,

the guideline support of a parent who has one child from this relationship and one child from another

relationship that she supports, would be 17.5% of her net income.

I encourage you to calculate your child support payments on our website at www.MargaglioneLaw.com.

The Courts will look at your income, but they can also look at your non-income assets, the child’s needs

and the child’s standard of living to determine the amount of child support awarded. For example, if a

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

parent does not have a regular-paying job, but receives income from a separate property trust, then the

court will consider the trust in determining the amount of child support to be awarded. Also, if the non-

primary parent makes significantly more money than the primary parent, the court may order the non-

primary parent to pay more than guideline child support as well as the child’s extracurricular activities, so

that the children can maintain their standard of living.

There is also a cap to these child support guidelines, where if a parent makes over a certain amount per

month, the amount of child support the parent pays is capped off at a certain income level. The level of

income for the cap increases at times, but is currently at a net resources level of $8,550 per month.

However, depending on the judge, the Courts may choose to ignore the cap and order the parent to pay

more than the capped guideline.

If a person is self-employed, then there are additional self-employment taxes that are accounted for in

the calculation. When a parent is self-employed, there is a lot of additional information that is needed to

give to the judge for the judge to make a decision on child support. If a parent’s income varies significantly

from one year to the next, the courts will evaluate the prior years of income with the present level of

income. If the income has consistently gone up, then the court will probably use the current level of

income. If the income has gone down, then the courts will want to know why, and they may go with the

current level of income or with an average of the last couple years. If the income has gone up and down,

the courts may use an average of a few years. Furthermore, if a parent is self-employed, there are

personal expenses that may be paid for by the business to take advantage of tax advantages, that can be

excluded from the business expenses for the purpose of increasing the income of the owner for child

support calculation. These expenses tend to be evaluated more closely when the parent has claimed large

deductions and/or has very little taxable income due to business write-offs. Examples of these expenses

might include the owner’s car, cell phone, meals, entertainment, vacations, and other such expenses.

It is important to note that if the courts determine, or even suspect, that a person has purposefully

decreased their income so that they can pay less in child support, then the courts will most likely still

require that parent to pay child support at the level when he was making the most amount of money.

Similarly, if a parent is not working, the courts will make the assumption that the parent has the ability to

get a job paying at least minimum wage, and the court will order that parent to pay guideline child support

based on an income of minimum wage.

So what if the primary parent makes a large income and the non-primary parent makes barely enough to

support herself? Will the court still make the non-primary parent pay child support? The answer is yes!

Whether that non-primary parent is a father or a mother, the courts will still order that parent to pay child

support to help support their own child. If the person does not earn a full-time minimum wage salary, the

court may elect to make that parent pay according to the guidelines based on minimum wage or the judge

may decide to make her pay something less than guideline support, but unless there are extraordinary

circumstances, you can count on the low-income non-primary parent having to pay something in child

support.

State Involvement: Office of the Attorney General “OAG”

When and how does the state get involved in my case? The Office of the Attorney General, or “OAG,”

represents the State of Texas in these cases. If the child is on government benefits, then the state will

likely intervene in your case. They get involved in this situation, because they want the parent paying

child support or medical support to reimburse the state for the government benefit the child is receiving.

Another situation where the state will get involved is when one parent requests assistance. This is

common when the parents of a child were never married, but they split up, and the father is not paying

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

child support. Or the father might also request assistance from the OAG when the mother is not giving

him access to the child, so the state can assist him to get visitation orders in place. A critical piece of

information is that the state does NOT represent the parent requesting the assistance – the OAG

represents the interests of the State of Texas. The OAG’s job is to minimize the situations where the child

is on government assistance, or to have one of the parents reimburse part of the cost of that government

assistance.

One advantage of requesting OAG assistance for a child support case is that the OAG has access to the

Texas Workforce Commission records. This means that when a parent starts working for a new employer,

that employer must report the income paid to that employee, and the OAG has access to these records.

This is particularly advantageous when a parent refuses to provide or update the income information to

the other parent, or when a parent is untruthful about the income.

There are also some disadvantages of requesting OAG assistance. One is that they will not file for divorce,

they will only assist on the child issues. Another, that has already been mentioned, is that they do not

represent you. A third is that you are not going to get orders that are super customized for you – they

will all be a variation on the standard forms. Finally, the OAG tends to take a very long time to file a case

on your behalf (I’ve known people to wait over 6 months), so if you need something now, this is not the

way to go.

State Disbursement Center and Automatic Employer Withholding

The state is also involved in most cases because the parties are normally required to pay, and therefore

receive, child support through the State Disbursement Center. This is done so that the state can monitor,

track and keep records of the payments, including exactly who paid how much, when, and through what

method. Often parties do not want to have their child support payments go through the State

Disbursement Center, because it takes extra time for processing, there is a small fee, or they do not want

the government to track them. However, I recommend that EVERY parent use the State Disbursement

Center for their child support payments. I can not tell you how many poor souls faithfully paid their ex

directly for years, and then suddenly the ex claimed that he never paid child support, so now the

government is going after him saying that he owes tens of thousands of dollars in arrearages. Worse yet

is when he paid her in cash and did not keep any receipts. Now the poor soul has to spend thousands of

dollars to rebut the dead-beat-dad accusations and to keep from being sent to jail! No matter how much

she complains about how long the payments are taking to get to her, it is so much cheaper and worth the

peace of mind to pay through the State Disbursement Center.

Do I want my child support automatically deducted from my paycheck? Once again, this is the most likely

the best way for you to be assured that the full payments are being made timely, and with minimal effort

on your part! Furthermore, if you are paid more than once per month, then your child support payment

is automatically split evenly between your paychecks. So if you are paid twice per month, then the

$1000/month child support payment is deducted as $500 from your first paycheck of the month and $500

from your second paycheck. The courts almost always send a withholding order to your employer to have

your child support payments automatically withdrawn and sent to the State Disbursement Center.

Employers are used to theses withholding orders, and they have processes in place to follow the court

orders. It is still your responsibility to make sure that your employer begins the deductions when

expected, continues them, and pays the correct amount, but once the deductions start, you can usually

count on them continuing as ordered. It is also noteworthy that your employer can not pay more than

50% of your net income for child support. So, if your pay varies and you made very little this pay period,

and as a result, your employer only paid a portion of the child support owed, you must still pay the

difference. It is still recommended that you pay this through the State Disbursement Center. On occasion,

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

I am asked if an employer will look down on an employee or fire an employee when they receive a child

support withholding order. First, employers are not allowed by law to hold that against you. Second, it is

so common for employers to receive these withholding orders that they do not think anything about it.

Finally, money for child support that is automatically deducted from your paycheck is automatically sent

to the State Disbursement Center, so it is tracked and recorded by the State, by your employer, and by

you. That’s good insurance.

Arrearages and Enforcement

When a parent is ordered to pay child support, but does not pay it or does not pay the full amount, then

that parent begins accumulating what are called “child support arrearages.” Eventually, the OAG or the

opposing party will file a “motion for enforcement” or “petition for enforcement” to make you pay these

past-due child support payments. This is a quasi-criminal lawsuit, because you can be sent to jail for non-

payment of child support. As a result of the potential jail-time, you also have a right to a court-appointed

lawyer if you can not afford a lawyer. In addition to potential jail time, you can be fined, held in contempt

of court, and ordered to pay attorney fees and costs of the other party and the government. You will also

have to pay interest on the arrearages, and this can add up quickly.

You will generally not be sent to jail the first time you are brought to court for child support arrearages;

however, if you repeatedly do not pay your court-ordered obligations, then it is more likely that you will

spend some time in jail.

If you find yourself having to defend an enforcement suit, then you should make sure that you hire a

lawyer (or at least accept a court-appointed lawyer) to keep you from making irreversible mistakes and

to help you get the best resolution possible for your circumstances.

Furthermore, the OAG can initiate certain actions without even taking you to court. This usually occurs

when that poor soul paid the ex directly, but the ex refuses to provide a notarized statement that he paid

the child support. In these cases, the OAG sees in their records that the “dead-beat dad” has not made a

single child support payment and it has now been years. As a result, they can and will seize your tax

refund, retirement accounts, as well as your checking and savings accounts. They can also have that

parent’s professional licenses or driver’s license suspended. And they can do all of this without even

taking you to court. This is yet another reason to use the State Disbursement Center.

If your visitation and custody situation has changed significantly since the last orders particularly if you

are now the primary parent, then it is critical that you talk with a lawyer about changing the court orders

officially! You do not want to just stop paying child support without changing the court orders. Again,

the sad and not infrequent situation is the dad who was previously ordered to pay child support, who is

the only parent currently being a parent, who has essentially been the sole caretaker for the child, who

stopped paying child support to the mom, and is now having to defend himself against the state for child

support arrearages.

Modifying Child Support

Generally the courts require you to wait three (3) years before coming back to court to modify a child

support order. However, if the parent who has been ordered to provide child support has had his/her

income change significantly, then that may be reason to change it sooner. Specifically, if the projected

child support is 20% or $100 per month higher or lower than the current child support obligation, then

you may be eligible to change the amount of child support sooner. Use the child support calculator on

our website at www.MargaglioneLaw.com to help you determine if your child support should change.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

The process to change the amount of child support is pretty much the same as for filing a new divorce or

custody suit. You need to file the petition, serve the other party and appear in court for either a hearing

or to have the agreed order signed by the judge.

MEDICAL SUPPORT

The person who is ordered to provide child support is usually also ordered to provide medical support.

This means that the parent either 1) has medical insurance through his/her work (or other method) and

has the child covered on that policy, or 2) the other parent has the child covered on insurance s/he

provides and the non-primary parent must reimburse him/her for the premiums, or 3) the child is on

government benefits and the non-primary parent must reimburse the State for the cost.

If there is an employer withholding order in place for child support and the non-primary parent must

reimburse the primary parent or the State for the insurance premiums, this amount is also included in the

automatic withholding.

For all intents and purposes, it is still considered support of the child, and as such, can be enforced as child

support.

In most cases, even when one parent is ordered to pay the medical insurance premiums, both parents are

ordered to evenly split the cost of uninsured medical expenses such as deductibles and copays. The

process to reimburse each other for these expenses should be clearly outlined in your court order.

PARENTAL RIGHTS

We started this chapter with a brief description of the terms of “custody”, “conservatorship”, “Joint

Managing Conservatorship” versus “Sole Managing Conservatorship”, and “primary parent” or “custodial

parent.” Now, we can get into a bit more detail on these. Let me explain that the Texas courts presume

that Joint Managing Conservatorship is in the “Best Interest of the Child.” This is another legal term that

is very important. The courts will make all of their decisions about the child using this standard of “best

interest of the child.” This means that the judge may entirely ignore any needs or desires of the parents,

because the judge is trying to do what s/he believes will be the best for the child, in terms of physical and

mental health, physical well-being, costs and expenses, minimizing the change and conflict for the child,

etc. Though the best interest of the child may inconvenience or actually burden a parent, it is the most

important interest in all of these cases.

This means that even if you are having a nearly impossible time getting along with your ex, you may have

to figure it out anyway. The Court expects you, as the adult, to figure out a way to create a new, business

relationship with your ex, so that you can be a good example for your child. If you are struggling with this,

there are all kinds of resources available to help you with this process. Specifically, there is a book called

“Mom’s House, Dad’s House” written by Isolina Ricci, that comes highly recommended by judges,

attorneys and mediators. There is also a companion book for the children, as well as a co-parenting

toolkit by the same author.

For those families that are high conflict, there are some wonderful resources written by High Conflict

Institute founder Bill Eddy. Mr. Eddy is a lawyer, therapist, and mediator, and has some wonderful insights

into dealing with the most difficult people in our society and in our lives. I encourage you to check out his

website at www.highconflictinstitute.com and read any of his books to help you deal with the difficult

people anywhere in your life. I want to point out that my husband, who is not in the legal field at all,

immediately started using the tips from these resources with some of his employees, colleagues, and

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

managers, and he was very impressed with how much they help him every day! And no, I do not get a cut

from his sales.

Now that we’ve gotten past the most difficult point, let’s discuss parents’ rights. There are certain rights

that every parent has at all times. They are the following:

• the right to receive information from any other conservator of the child concerning the health,

education, and welfare of the child;

• the right to confer with the other parent to the extent possible before making a decision

concerning the health, education, and welfare of the child;

• the right of access to medical, dental, psychological, and educational records of the child;

• the right to consult with a physician, dentist, or psychologist of the child;

• the right to consult with school officials concerning the child’s welfare and educational status,

including school activities;

• the right to attend school activities;

• the right to be designated on the child’s records as a person to be notified in case of an

emergency;

• the right to consent to medical, dental, and surgical treatment during an emergency involving an

immediate danger to the health and safety of the child; and

• the right to manage the estate of the child to the extent the estate has been created by the parent

or the parent’s family.

There are also certain duties that both parents have at all times. These are the following:

• the duty to inform the other conservator of the child in a timely manner of significant information

concerning the health, education, and welfare of the child;

• the duty to inform the other conservator of the child if the conservator resides with for at least

thirty days, marries, or intends to marry a person who the conservator knows is registered as a

sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an

offense for which on conviction the person would be required to register under that chapter. IT

IS ORDERED that this information shall be tendered in the form of a notice made as soon as

practicable, but not later than the fortieth day after the date the conservator of the child begins

to reside with the person or on the tenth day after the date the marriage occurs, as appropriate.

IT IS ORDERED that the notice must include a description of the offense that is the basis of the

person’s requirement to register as a sex offender or of the offense with which the person is

charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C

MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE; and

• the duty to inform the other conservator of the child if the conservator establishes a residence

with a person who the conservator knows is the subject of a final protective order sought by an

individual other than the conservator that is in effect on the date the residence with the person

is established, or the conservator resides with or allows unsupervised access to a child, by a person

who is the subject of a final protective order sought by the conservator after the expiration of 60-

day period following the date the final protective order is issued, or the conservator is the subject

of a final protective order issued after the date of the order establishing conservatorship. IT IS

ORDERED that this information shall be tendered in the form of a notice made as soon as

practicable, but not later than the thirtieth day after the date the conservator of the child

establishes residence with the person who is the subject of the final protective order, or the

ninetieth day after the date the final protective order was issued if the conservator of the child

resides with or allows unsupervised access to the person who is the subject of a final protective

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

order sought by the conservator, or the thirtieth day after the date the final protective order

issued against the conservator which is issued after the date of the order establishing

conservatorship, as appropriate. WARNING: A CONSERVATOR COMMITS AN OFFENSE

PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

Then there are certain rights and duties that each parent has while in possession of the child. These are:

• 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, and

medical and dental care not involving an invasive procedure;

• the right to consent for the child to medical and dental care not involving an invasive procedure;

and

• the right to direct the moral and religious training of the child.

There are two rights that are usually exclusively given to one parent (often referred to as the “primary

parent” or “custodial parent”), and these include:

• the exclusive right to designate the primary residence of the child (usually within a specific

geographic region); and

• the exclusive right to receive and give receipt for periodic payments for the support of the child

and to hold or disburse these funds for the benefit of the child.

Even though these are usually designated exclusively to one parent, there can be variations, based on

your specific family circumstances.

Finally, there are certain rights that can be given solely to one parent or the other, can be made jointly by

both parents, can be made by the parent who is in possession of the child at the time (independent rights),

can be made by one parent after consulting with the other parent, or some variation thereof, depending

on the circumstances of the family. Since the court presumes that the parents are joint managing

conservators, that means that it presumes that all of these rights are made jointly by both parents, or in

other words, “subject to the agreement of the other parent conservator.” These rights and duty include:

• the right to consent to medical, dental, and surgical treatment involving invasive procedures;

• the right to consent to psychiatric and psychological treatment of the child;

• the right to make decisions concerning the child’s education;

• the right to represent the child in legal action and to make other decisions of substantial legal

significance concerning the child;

• the right to consent to marriage and to enlistment in the armed forces of the United States;

• except as provided by section 264.0111 of the Texas Family Code, the right to the services and

earnings of the child;

• except when a guardian of the child’s estates or a guardian or attorney ad litem has been

appointed for the child, the right to act as an agent of the child in relation to the child’s estates if

the child’s action is required by a state, the United States, or a foreign government; and

the duty to manage the estates of the child to the extent the estates have been created by community

property or the joint property of the parent.

So that is the default, and where the courts start. If you disagree, it is up to you to prove how and why it

should be different. On the other hand, if you and your ex agree that it should be different, then the court

will most likely agree with you and sign off on your agreement.

When a parent is designated Sole Managing Conservator, they usually have the exclusive right to both of

these last two sets of rights and duties. However, sometimes the parents can be called joint managing

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

conservators, and yet one parent is given all ten of those exclusive rights. This is often done so that the

other parent does not realize what he is losing out on, and so he’ll agree to the order.

A lot of times parents will also agree that these last 8 rights can be made when each parent has the child.

These are referred to as “independent rights.” This can prevent a lot of fights about therapists and non-

emergency medical issues. You may also see rights 1-3 as independent and 4-8 as joint. That’s because

situations for rights and duty 4 through 8 above rarely occur, and if they do, the parents probably will

agree anyway.

The huge area of concern is who decides what is the primary residence of the child. Usually, the courts

will require this parent to continue to reside in a small geographic area, because the courts understand

that children need both parents, and they are very unlikely to have a meaningful parent-child relationship

if one parent lives more than a couple hours away. When I first moved to Texas, I would usually hear the

judge order that one parent is awarded the exclusive right to designate the child’s residence within Travis

and contiguous counties. Before you start questioning yourself on your vocabulary prowess, I had to look

up the word “contiguous,” even after going through law school. It means “touching.” So the parent was

restricted to living in Travis County or any county that touches Travis County. These days, however, I will

often hear Travis and Williamson counties or Travis and Hays counties. Because if one parent is in the

southern part of Hays County and the other lives in the northern part of Williamson County, it could easily

take two hours or more to go between the homes in rush hour traffic. As a result, it is not likely that a

parent is going to make such travel during the week when there is school and work, and therefore, the

non-primary parent is likely to get less contact with the child, and therefore have less of a relationship

with the child. So the courts are starting to take that into account. They have probably already been

doing that in the Dallas and Houston areas as well.

Every once in a while, I see parents who agree that neither parent should have the right to designate the

primary residence of the child, but they agree that the child must continue to live in an even smaller

geographic area, such as within a particular school district. This is highly favored by judges, because it

shows that the parents are truly considering the child, and want to do everything to ensure that the child’s

life is minimally disrupted by their own issues.

Another common question is, does one person have to pay child support? What if we decide to do a

50/50 visitation schedule? Can’t we just split the parenting in half and neither parent pays child support?

On a rare occasion, I have recommended this: when both parents truly had the child 50% of the time AND

both parents made about the same amount of money AND both parents split all expenses for the child

50/50. But most of the time, it doesn’t work out so perfectly. More often, one parent makes significantly

more money than the other. And if the parents are truly joint managing conservators, the parent with

fewer resources and a lower income is likely going to be granted some amount of child support by the

court. How much will depend on the specific circumstances of the family.

The Myth of the Child’s Decision

Parents always want to know when the child gets to decide which parent he or she lives with. Let’s now

talk about the myth of the child’s decision. The law currently says that in a custody case, if a parent

requests it, when a child is 12 years or older, then a judge is required to meet with that child. If the child

is under the age of 12, then it is up to the judge’s discretion as to whether the judge wants to meet with

the child.

If the judge meets with the child, this does not mean that your child is going to sit on the stand and be

grilled by lawyers in the courtroom, like you are as an adult witness. This does not mean that the child

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

tells the judge where she wants to live, and the judge acts like a genie and grants the request. This also

does not mean that the judge ignores all of the other evidence that is presented.

The decision of where a child primarily lives, like all other decisions that can not be agreed on in a custody

case, belongs solely to the judge. The judge is going to hear all of the other evidence in the case first,

before even talking with the child. Sometimes, there is enough evidence that the judge will not even need

to talk with the child and the judge will grant or deny the change. But if the judge does talk with the child,

it will often be after the child is done with school for the day, to minimize the disruption of the child’s

schedule and education. Then, the judge meets with the child in the judge’s office, usually with only

members of the judge’s staff also present. Rarely are the attorneys allowed in the room. This is because

the judge wants to be able to have an honest and meaningful conversation with the child about what life

is like. The judge listens to the child, including what the child says and does not say, and observes the

child during this conversation. After listening to all of the evidence that was presented during the hearing

and after evaluating the conversation with the child, the judge then will make a determination as to where

the child should live, under what circumstances, with what periods of possession by each parent, and

more.

In my experience, judges are very good at spotting a teen who wants to live with the other parent just so

they can get away with more and not have to live by rules. They are also very good a spotting children

whose parents have told them what to tell the judge. No matter how much your child tells you that they

want to live with you, and they ask you why they have to live where they are now, take the high road.

Your child does not belong in the middle of your battle with your ex. You should never speak poorly about

the other parent in front of the child, but it takes more than that to take the high road. You should

encourage the love between your child and the other parent. You should encourage the relationship

between your child and the other parent, no matter how you feel about the other parent. If the child is

truly in danger, then you need to take action immediately, so talk with your lawyer about it. However,

the more likely scenario is that the situation is not ideal, maybe even slightly harmful to the child, but not

as bad as you think it is. The child still needs that parent’s love, no matter how bad the parent. If your

child feels strongly about a change of living circumstances, then you have the opportunity to give your

child a voice in the court system. But be sure that you do not corrupt that voice. You will do best for your

child by advocating for your child, with the minimal involvement of your child.

POSSESSION/VISITATION

Now that we’ve discussed who has what rights for the kids, who makes decisions about the kids, and how

much is someone going to have to pay for the kids… let’s talk about the all-important question: When do

I get to see my kids? You might hear or see this issue called “visitation”, “possession” or “access.”

Let me first point out that whether or not a parent is current on paying child support is completely

irrelevant to whether or not that parent gets time with the kids. Some parents who are using their kids

as pawns might be inclined to withhold time with the kids if the other parent is not paying or is behind on

child support. Not only is this bad behavior, but it is specifically written in most orders that a parent can

not withhold time with the kids to try to make the other parent pay child support. This is just asking to

be taken back to court on an enforcement motion and to pay the delinquent parent’s attorney fees.

Standard Possession Order

Let’s start with what the court assumes is in the best interest of the child. In Texas, there is something

called a Standard Possession Order (SPO). The non-primary parent (the one paying child support), gets to

have time with the child every first, third and fifth weekend of each month, starting at 6:00 p.m. on Friday

and ending at 6:00 p.m. on Sunday. Then, during the school year, that parent will get the child every

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Thursday from 6:00 p.m. to 8:00 p.m. Then there are the holidays. The parents alternate Thanksgiving

from one year to the next. They also alternate spring break each year. Then, for the Christmas holiday,

one parent gets the child on the day the child is let out for Christmas break until noon on December 28,

and the other parent gets the child from noon on December 28 until school resumes after the break.

Finally, the non-primary parent gets a 30-day period with the child in the summer.

There is a variation on this called the Extended Standard Possession Order. That gives the non-primary

parent more time with the child. Specifically, the weekends start immediately after school on Friday and

end at drop-off at school on Monday. Also, the Thursday possession during the school year goes from

Thursday after school to drop-off at school on Friday. The holidays are also school to school. I am told

that this is closer to giving each parent about 50% of the time with the kids, but in my experience, the

non-primary parent usually does not feel like it is.

50/50 and Other Non-Standard Schedules

I am often asked about doing a 50/50 schedule with the kids. First, there are couple different ways of

doing a 50/50 schedule, and we’ll get to those details momentarily. Second, whether this will work

completely depends on your specific situation. Some judges have said that a 50/50 schedule only works

when the parents work well together. Keep in mind that the judge is required to presume that the SPO

or Extended SPO is in the best interest of the child, so that is usually what the judge will order. However,

the status quo (or what schedule you have already established) may override the presumption. So, if you

have already agreed to and implemented a 50/50 schedule, the judge is more likely to order that this

schedule continue. On the other hand, if it is not working well (i.e. a child is struggling with grades or

behavior), then the judge may switch the visitation schedule to the SPO.

As I mentioned, there are a couple of different ways to do a 50/50 schedule. The simplest to describe is

week on / week off. This is where one parent gets the child for one entire week, and the other parent

gets the child for the entire next week. The exchange day and time depend on the family’s circumstances,

but are most often Friday after school or Monday drop-off at school.

The other common 50/50 schedule is called a 2-2-5, 2-2-5-5, or 2-2-3 schedule. An example of this type

of schedule is that Mom has the child every Monday and Tuesday, Dad has the child every Wednesday

and Thursday, and they alternate the weekends. It would look something like this:

Week 1:

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Mom

Dad

Mom

Week 2:

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Mom

Dad

Week 3 would then be the same as Week 1, etc. Personally, I believe that this type of schedule could

wreak havoc on the child, because it would be very difficult for the child to keep track of what homework,

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

books, supplies, instruments, uniforms and equipment are at which parent’s house. In my opinion, this

schedule seems to put the biggest burden on the child. But for some families, this works. It all depends

on the circumstances.

Sometimes, a parents’ work schedule can create a need for modifications to a normal visitation schedule.

In particular, I have custom-created schedules for airline pilots (who are out of town for 14 days at a time),

firefighters (who are on call for 24 to 36 hours at a time), and other parents who work nights or have non-

customary work schedules. What it boils down to are the very specific circumstances of your family.

However, in the vast majority of situations, the court will order the SPO or extended SPO.

In some situations, it is not appropriate for both parents to have equal (or near to equal) time with the

kids. For example, if a child is under the age of three, studies show that it is more important for the father

to have more frequent, but shorter periods with the child. This has to do with the child’s development

and attachment. In other situations, no matter the age of the child, the family circumstances require

some safety precautions to be taken. We’ll address some of those issues shortly.

Military

If a parent is in the military, there are many specific provisions for those circumstances. For example, a

deployed military parent may choose to designate a person(s) to exercise his/her visitation while

deployed. What this can mean is that the deployed parent might choose to have his own parents use his

visitation periods. Additionally, when the parent returns home from deployment, he can get extra, make-

up visitation periods with the child.

Alienation

Parental alienation can be defined as the process and the result of a child unreasonably and unjustifiably

rejecting a parent, and sometimes other family members, due to the other parent’s manipulations. This

rejection can be seen in the form of disrespect, hostility, or unwarranted fear on the part of the child

towards the other parent. Sometimes the child acts consciously, but sometimes not. There are specific

symptoms that are common to such alienation. Parental alienation is an awful thing for the entire family,

particularly for the short- and long-term effects on the physical and mental well-being of the child. The

problem is that it can be very hard to prove without the assistance of a qualified mental-health

professional. In such cases, lawyers need to bring in experts to investigate the situation, and the judges

rely on those expert opinions. Furthermore, experts are needed to attempt to try to help the child heal

and undue the harmful influence of that parent, and therapy is critical in these situations to try to help

the child and alienated parent restore their love and trust.

Safety Precautions, Drug/Alcohol/Mental Health Issues, Physical Abuse/Child Neglect Issues

As we mentioned before, it is not always appropriate for both parents to have equal time with the kids.

When there is a concern for the child’s safety, the Court might order any number of possible precautions,

including anything from supervised visitations, limited visitations, visitations in a specific location, or

rarely, no visitation. There might also be specific requirements that a parent must meet, such as therapy,

drug awareness classes, parenting classes, anger management or family violence prevention classes.

There might also be specific conditions on the visitation, such as submitting to drug or alcohol testing,

submitting to a psychological evaluation, time and place restrictions, and more. We might also get other

professionals involved, including a Guardian Ad Litem (to represent the child’s best interests), an Attorney

Ad Litem (to represent the child’s interests), a therapist, or a doctor. These situations, however, tend to

be extreme situations, such as where there is alcohol or drug abuse, physical violence, mental illness

and/or child neglect.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

I have seen cases where a mother took her child to a crack house, where a mother drove drunk with the

child in the car, where a mother physically attacked her husband while holding their child. This is not to

say that I haven’t seen situations where the father has done equally bad things. In fact, there have been

many situations in which I have helped the grandparents, a distant relative, an ex-step-dad, and other

caring people get legal custody of children they love, because both parents are simply unable and

unwilling to be the caring parents they should be. Children need access to all the people who are willing

to love them, but sometimes that access needs to have conditions, for the safety of the children.

If a dad is a first-time dad and has never been around babies, that is NOT a reason for that dad to have to

have supervised visitation with the child. This is no different from a first-time mom. Parents are not given

a handbook on how to raise children. However, it is not a bad idea for any parent, particularly a first-time

parent, to take a parenting course. It is also a very good idea for parents to take a co-parenting course

when they split up, so that the child has some consistency and so that the child has less opportunity to

play the parents against each other.

Furthermore, it does not matter to the child how broken or how horrible a parent is – the child craves and

needs the parent’s love and attention. If the child does not get the love and attention s/he needs, it may

have a very detrimental effect on the child, for that child’s entire life. What that means, is if there is a

“bad” parent, then precautions can be put into place for the child to have time with that parent, but in a

safe environment.

The biggest issue that separating parents often have to deal with is the lack of control of how your child

is raised. It is important (and difficult) for caring parents to let go of the fact that the other parent is going

to raise the child differently from how they would, and they must simply do the best they can in the time

that the child is with them. The urge to micromanage the other parent is very strong, and in most cases,

it needs to be tempered. However, there are circumstances where safety precautions are truly needed.

For example, there are situations in which a parent has a mental illness, and this can have significant

effects on the children. A mental illness by itself does not necessarily mean that the parent should only

have supervised and/or limited visitation with the child. In fact, if a parent has been diagnosed, is under

the supervision of a licensed professional, and the condition is under control (through medication,

therapy, or a combination thereof), and a professional has determined that the child is safe with the

parent, then that parent may be able to parent under a normal schedule. However, a court order might

say that this parent must continue medications and therapy as prescribed by a licensed physician. There

might also be emergency provisions in the order that state what happens if the person goes out of control.

On the other hand, if the parent chooses not to get control of her mental illness, then she may end up

with supervised and/or limited possession with the child.

Another common situation is when a parent has a history of drug or alcohol abuse. If a parent has a

pattern of neglect of the child or putting the child in a dangerous situation, then that would be reason to

ask for and require certain provisions in an order. Such provisions might include inpatient or outpatient

drug rehabilitation, random drug testing, proof of regular attendance at Alcoholics Anonymous or

Narcotics Anonymous meetings, a drug or alcohol monitoring device, or more.

What we try to do is to give the debilitated parent the opportunity and the map to change the direction

of his/her life. Sometimes, it works, but unfortunately it often does not.

PATERNITY

Unlike with mothers, when a child is born, there is no obvious father. However, the courts still make

certain presumptions and they have certain rules and procedures set up for fathers. For example, if the

mother is married when a child is born, the courts will assume that the child is the husband’s. So, if a

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

married woman has a child with another man, it can be very important to clarify for both men involved as

well as with the courts, who the biological and actual father is. I have seen situations where, for many

years, an ex-husband has unknowingly cared for and paid for a child that was not his biological child.

At times, a mother is reluctant to allow the biological father into the picture. In this case, the father can

file a document to state that the child this woman is carrying is his. This document is called an

Acknowledgment of Paternity (AOP). However, it is not recommended that you file this document unless

you are sure that the child is yours, because you can then be held legally responsible for the child (in other

words, you may be required to pay child support to the mother).

If a father is unsure if a child is his, he can ask the court to order the mother to allow the child to be

genetically tested. This does not usually happen until after the child is born, due to the safety of the child.

If a mother refuses to allow a father to have any access to his child, he can take her to court to force the

mother to give him access.

If a man thinks that a child is his, but chooses to not force the issue, he takes a huge risk. A parent can go

after the other parent for child support up to 2 years after the child turns 18. This means that a father

can be found to be the father when the child is 19, and then suddenly have to pay tens of thousands or

hundreds of thousands of dollars in child support. This is not a risk that anyone should take. Even if the

mother tells you that she won’t come after you for child support, you never know if she will go back on

her word. You should assume that she will. Always, always, always document your communications and

agreements. But do not make the assumption that this documentation will save you in every case.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Chapter 4 – What Happens Next?

LENGTH OF OBLIGATIONS AND/OR ORDERS

Custody orders in Texas are generally in force until the child has turned 18 years old AND graduated high

school, whichever comes last. So if your child turned 18 in February but does not graduate until May,

then the orders end in May. As for the child and medical support obligations, the last payments will be in

May, as long as you are current. But if your child graduated in May, but does not turn 18 until December

that year, then your orders end in December. That means that the last child and medical support

payments would be in December.

One exception to this general rule would be if the child is disabled. Child and medical support for a

disabled child may continue for the child’s life. However, once the child has turned 18 years old, one or

both parents will likely need to obtain guardianship for that child if he or she is unable to care for

himself/herself.

If the parties do not agree, the Texas Courts can not initiate and can not force any obligations for a child

beyond high school. That means that the court can not order a parent to pay for a child’s college against

the parent’s will. However, if the parents choose to and agree to do so in a court order, then a Texas

judge will sign that order, thus requiring the parents to uphold their part of that agreement. This can then

later be enforced against the parties, even if the circumstances have changed. If a parent wants to pay

for a child’s higher education, I believe that to be very noble and loving, but I do not recommend putting

it in a court order, even if you have no intention of changing your mind.

Normally, when your child ages out as described above and is no longer considered a child in the court’s

eyes, child support payments should automatically stop. But occasionally, there is an extra step or two

that needs to happen. Sometimes, you may just need to provide proof of your child’s age and graduation

to your employer. Sometimes, you need to actually go to court to have an order signed by the judge to

terminate child support. If you are not contacted within a month of the scheduled ending of child support,

I suggest you contact a lawyer to make sure that an order gets signed to terminate the child support

obligation officially.

APPEAL

Within 30 days after a final hearing, a person can appeal a trial judge’s decision in a divorce or custody

case. Quite honestly, an appeal of a family case in Texas is generally a waste of time and money. This is

because an appeal is going to have to be about the judge not following the law or the judge abusing

discretion, and so many of the decisions in a family case are fact-based rather than law-based. “Abuse of

discretion” is incredibly difficult to show in a family case, because nearly everything is left to the trial

judge’s discretion. The judge uses his or her own judgment to determine how believable each witness is

and to determine how much weight to put on different factors and issues. Though there is law that the

trial judge must follow, the appellate courts have generally found that the law is followed – the person

just disagreed with the trial judge’s determination of how to apply it. Thus the appeal is almost always

denied.

There are other, more effective, ways to have your situation re-evaluated, but these also must be acted

upon within the 30 days immediately following your trial. There is something called a Motion to

Reconsider, where if something new happened or was brought to a party’s attention, the person go back

in front of the judge to present this new information to try to get the judge to change his or her mind.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

There is also another option called a Motion for Clarification, if a judge’s decision has turned out to be

unclear.

There is also something called a “de novo” appeal, which can occur if a judge other than a district judge

presided over your trial. This de novo appeal essentially gives you the opportunity to redo your hearing

in front of a different level of judge (specifically a district judge). I would like to clarify that you do not

request a do novo hearing so that you can have a different district judge hear your case, nor do you get

the opportunity to choose your judge. In larger counties, you will find that your trial or hearing,

particularly a temporary orders hearing, will usually be heard by an associate judge. An associate judge is

an appointed judge and hears family cases all day every day. It is very important to note that a motion

for de novo appeal must be filed within 3 business days of the hearing and has very particular

requirements that must be met.

MODIFICATION OF FINAL ORDERS

The Courts generally want you to wait about 3 years before you go back to court to modify an order. You

better have a REALLY good reason to try to modify an order if it has been less than a year since the last

order.

The standard that the court requires to make a change to a prior order is a “substantial and material

change” in the circumstances of a child or a parent.

When it comes to child support, the court actually defines this for us. If the parent who is ordered to pay

child support has an increase or a decrease in income or resources that would result in the amount of

child support paid to be either 20% or $100 more or less than the current monthly amount, then you can

bring it back to court. Also, if it has been 3 years since the court evaluated your case for child support,

then it is okay to bring it back to court to reevaluate the situation.

When it comes to the non-monetary issues, this is much less clear. Examples may include a parent’s work

schedule changing so that the visitation schedule must be adjusted, a parent going to prison or to a mental

health facility, a child suddenly failing school, a child starting to act out in unacceptable ways, or a teenager

expressing that she wants to live with the other parent (see the section on The Myth of the Child’s

Decision).

Another reason to modify an order is if one parent was ordered to provide the medical insurance for the

child, the parents’ circumstances change, and the other parent is now providing the medical insurance.

In circumstances such as the medical situation, it is a very good idea to change the order so that it is clear

to all parties (including the OAG, who may not currently be involved) what the situation is and who is

paying for what. I have seen situations where the parents did not change the order at the time they

agreed to the change, and it came back at one parent years later, when the other parent was upset about

something else and not so agreeable about anything anymore.

What most people do not understand is that when you file a modification, it can be like the original divorce

or custody battle all over again. Sometimes it can be better, but more often I have seen it actually be

worse. When it is worse, I have found that it is usually because the parents did not address some serious

issues in the original case, or the parties have not figured out how to change their relationship with their

ex to be that of a business relationship rather than a broken, emotional relationship. You need to be

prepared for the cost to be as much as or more than your original divorce or custody case. Yes, this can

cost in the tens of thousands of dollars. It costs this much because you are still fighting over the same

issues – rights and duties, child support, medical support, visitation and conditions – and these issues are

highly emotionally charged. The more that each parent can look at the issues from a logical standpoint

rather than an emotional standpoint, the more likely that the parents can come to a partial or full

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

agreement, therefore minimizing or even avoiding the emotional, physical, and financial costs of the court

battle.

OFFICE OF THE ATTORNEY GENERAL (“OAG”)

The OAG can get involved in a case to either modify or enforce orders at the request of either party. If

you request assistance from the OAG and they begin or reopen your case, it is important for you to know

that the OAG does not represent you. The OAG represents the interests of the State of Texas. Requesting

OAG assistance can be to your advantage and can save you thousands of dollars in attorney fees if your

case is very simple and everything is standard. However, if your needs or wants are outside of basic and

standard in any way, you should hire your own attorney. If you are in the situation where your ex’s

interests are being presented by the OAG, then you most definitely should hire an attorney to represent

your interests. Remember that you are automatically at a disadvantage by having a lawyer on the other

side, even if that lawyer does not truly represent your ex.

What happens when the OAG files the enforcement? If the OAG files a motion for enforcement against

you, then it is for enforcement of child support and/or medical support. The OAG often holds these types

of case in bulk. In the larger counties, these cases are usually held in their own courtroom, with a specific,

associate judge. In these cases, both parties are ordered to appear in court on a specific day. In most of

these situations, there a chance that you could be sent to jail. In fact, if you do not appear in court when

you were ordered to, a warrant can be issued for your arrest. When you are found, they will put you in

jail until a hearing can be had (usually within the week). Though this is not a criminal court, a possible end

result could be a stay in prison. As a result, if you are defending against an enforcement for child support

and medical support, you have a right to have a court-appointed lawyer. If you can not afford a lawyer,

then by all means, ask for and take a court-appointed lawyer. Do not assume that you are getting an

inexperienced or incompetent lawyer. Because of the ways our system in Texas is set up, the court-

appointment system is not what you assume. You might end up with an amazing lawyer!

ENFORCEMENT

If one party is not following the court orders, then the way to attempt to force this person to follow the

court orders is by filing what is called a Motion for Enforcement. This is a hearing in which you present to

the judge how the other side has violated court orders and what you would like done about it. Note that

your options about what you want done about it are limited by the law. For example, you can not have a

person thrown in jail for talking badly about you in front of the child, no matter what she says.

If you are on the receiving side of a motion for enforcement, you need to know the possible consequences.

Specifically, if it is for child support or medical support you can be sent to jail or sentenced to prison, you

can be given a suspended commitment and be on supervision for 10 years, you can be fined, you can be

required to pay attorney fees for the state or your ex, you can lose your license, you can have your assets

taken away, and you can be humiliated and labeled as a dead-beat dad.

If you are intending to file your own motion for enforcement, you will want to be sure that you are in

complete compliance before you file. An enforcement will bring the issue before the court, and as long

as you succeed, you are likely to receive some attorney fees for the enforcement.

The real question is when should you file a motion for enforcement? There needs to be enough violation

of the court orders that it is worth all the time and money for filing the enforcement. It may also be worth

having your lawyer try to resolve the issue with your ex without going to court first. You might also

consider mediating before you go to court, because you are more likely to get to the real issues and it is

likely to cost a whole lot less than a court battle.

Texas Divorce and Custody: A Guide for Caring Men and Fathers www.MargaglioneLaw.com

Within a few weeks to a couple months after we finalize a case, I often have a client call up to tell me what

awful things the other parent is doing, and ask how we make her stop doing those things. My usual

response is something to the effect of, “Let’s give it some time.” There are a couple reasons for this

response. One reason may be that the ex is particularly emotional right now and not acting normally (i.e.

responsibly). Whether or not you want to admit it, you are also probably emotional and more likely to

still react poorly to your ex, because you have not healed enough to let the little things go. Given some

time, you and your ex might each make strides towards healing, which in turn will make your ex less likely

to do those awful (and annoying) things and you less inclined to react. On the other hand, if you continue

to react to your ex’s antics, then she is more likely to continue or even increase the antics, because she is

getting exactly what she wanted: your attention. Another reason to wait before filing an enforcement is

that we need to be able to show a pattern of this poor behavior. Usually the act or acts in and of

themselves, though incredibly frustrating, are not significant enough to warrant taking her back to court.

If she continues to regularly engage in behavior that is disruptive and harmful to the emotional or physical

well-being of the child, then when we have enough evidence 1) to show a pattern, 2) to show the harmful

impact on the child and 3) to show that this person is not likely to stop this behavior without the court’s

intervention, that is the point at which we go back to court.

The waiting game applies to money issues as well. You do not want to spend $5,000 going back to court

to enforce $3,000 of child support not paid. Even if you do get the court to award you attorney’s fees (i.e.

your ex has to pay for your attorney), I have rarely seen the judge require her to pay the full amount it

cost you for your lawyer to do her job well.

When you file a motion for enforcement, there is also a risk that the other side may file a counter motion

for enforcement or even a petition to modify the parent-child relationship. If you have complied with the

court orders, then you have nothing to worry about, however, there is usually something they can find on

you too. And even if you do not think there is, your ex will present a story that will make you go through

hoops to prove your story is right and your ex’s story is wrong. In any case, before you file anything, you

want to know what the potential ramifications are, understand whether you are willing to take that risk,

and be prepared for what may happen.