Urban myths in texas family law

Urban Myths

Children that are 12 years old may voice a preference, but the decision is made by what is in the best interest of the child. In order for a child that is 12 years old or older to speak with a judge, the parent must file a lawsuit requesting the judge to speak to the child. The judge would also hear testimony on what is in the best interest of the child. Children between 12 and 17 rarely know what is in their best interest. They can easily be swayed by a “Disney” parent who offers things the child wants rather than recognizing the parent who truly is invested in the child’s future.
50/50 possession does not preclude the payment of child support to the other parent. Every case has unique facts and circumstances. If there is a disparity of earnings between the parents, most likely the higher earning parent would pay some child support to the other parent.
No, your rights to the marital residence are protected. Whether or not you are living in the home has no bearing on who will ultimately either get the house or the proceeds of a sale.
Abandonment does not occur by simply moving. Abandonment usually refers to children or spouses, not property.

Texas’ family law code provides that the division of property will be “just and right, having due regard for the rights of each party and any children of the marriage”. Every marriage is different. There are a number of factors that are considered in the division of the estate.

  • Future need for support
  • Fault in the breakup of the marriage
  • Disparity of age, income capacities and abilities or physical conditions of the spouse, education and training, child custody, the nature and extent of the property, attorney fees, and the wasting of community assets by a spouse.
Not necessarily. No one becomes accidentally common law married by the passage of time, the birth of children or combining of monetary accounts. The biggest factor to consider in whether or not a couple is common law married is whether they held themselves out to friends, family and others as being married and cohabitated in Texas. Also, filing a federal or state tax return claiming a married filing jointly status is fairly telling, since there is an attestation that the facts in the return are true. There are many other nuances to common law marriages and you would need to discuss your facts and circumstances with a qualified family law attorney.

No, there are not two levels of being married. It doesn’t matter how you got married – you are either married or you are not. If you are married, you need a divorce.

Not necessarily. The person that files is called the “petitioner” and the other spouse is the “respondent”. If you go to a hearing or a trial, the petitioner presents their case first. Some see this as an advantage, but if you are the respondent, you present your case last, so that the judge hears from you right before the ruling.

No. Custody and possession of the children is a separate matter from the payment of child support. There is no quid pro quo.

The short answer is yes, but there are a lot of ifs ands and buts to this topic. Every family situation is unique. The first factor is the age of the child.


If children are younger than 16, the custodial parent should do everything possible to keep the children going to the possessory parent for visitation, with some caveats. Obviously, the custodial parent needs to recognize when the children seem afraid or have other changes in their mood and personality. This could but may not signal that something is wrong. If you suspect child abuse you should immediately take the child to Dell Children’s Hospital for evaluation. Sometimes when a new person comes into the other parent’s life the dynamics between the child and the parent change. They may give the child less attention or one-on-one time. Or they may abdicate their parental responsibilities to the new person. There also may be additional children in the mix from this new person.


If the children are 16 and above, there are a lot of different factors in why the children don’t want to continue to visit the other parent. The biggest reason is that kids that age may be driving and they have more freedom. At this time in their lives they are pulling away and/or rebelling. It is a normal phase that has to be lived through. If the children don’t have a good relationship with the other parent, it isn’t going to help the situation by getting into battles with a teen.

No. Spouses do not award each other divorces. You can file for divorce. At the end of the process you will be divorced, but it may be a longer and more difficult divorce.
Yes. Many spouses begin a divorce but take a break to give the marriage one more chance. We are not invested in getting you divorced. We work for you and we will respect your wishes.
A legal separation is a quasi-state in which you are not divorced but you have separated physically from each other and you have separated your finances. Some states allow for legal separations, but Texas does not. Most likely the reason for Texas’ non-recognition of legal separation has to do with how the property and family law code are based. In Texas, everything acquired by a married couple is community property and is owned equally by both spouses. Creditors look to both spouses for debts. Many parts of the Texas law would have to be rewritten. Other states that do not recognize community property are more likely to support a legal separation. You are married until you are not in Texas.
Regardless of the marital status of either parent, each biological parent has the same rights and duties to their children. If the mother of a child is married at the time of the child’s birth, her husband is the presumed father of the child. That said, if a biological father comes forward and proves his fatherhood via DNA analysis, then the birth certificate will be changed to reflect the biological father.
No. An attorney can only represent one client in a divorce. The other party is considered Pro Se (self advised). The attorney cannot give any legal advice to the Pro Se party.
Not necessarily. If a child has two parents, the normal person to take possession of children is the living parent. If the children are estranged from the other parent, the courts might be enlisted to determine who is best suited for possession of the children.
No. There is nothing requiring an accounting of child support. If the children are being neglected then there are other courses of action to deal with that issue.
Controlling spouses say a lot of things. The collaborative process requires both parties to agree to be bound by the collaborative rules. If you don’t agree, you don’t have to hire a collaborative attorney.
That is not likely. Both parties are entitled to community funds to pay legal fees in a divorce. That includes incurring debt on a credit card for fees.