There is a common myth about property division in a Texas divorce –  that everything must be divided 50/50—it just isn’t true.

In Texas, a court is required to divide the community property of the parties “in a just and right manner.”

So what does that mean?  Sometimes it means 50/50—in fact it often means 50/50.  But in dividing property of the marriage, courts may take many things into account such as:  

• Who was at fault in the break-up of the marriage
• Family violence
• Whether a party wasted assets
• The age of the spouses
• The relative ability of the spouses to support themselves after the divorce
• And perhaps the most common basis for an uneven split:  which party will bear the primary responsibility for the care of the children after the divorce

These and many other things can lead to an unequal division.  Courts occasionally award as much as 65% of the property of the marriage to one party in extreme cases.  But more often, if there is a variance from 50/50, the difference is more likely to be in the 5% range.

With a large estate, even just a 5% difference can be significant, but it is also generally the case that the larger the estate, the more likely it is that the property division will be closer to even.

Many divorce clients ask if they can get “Sole Custody” of their children.  Here’s the scoop on child custody in Texas.

These days, joint custody is preferred by the Family Courts. Sole managing conservatorship—the technical term for sole custody—is still permitted, but rare.  To get sole custody, the court would have to find that joint conservatorship would be bad—that it would “significantly impair the child’s physical health or emotional development,” or that there had been family violence or child abuse.

So what does joint custody mean?  It doesn’t mean everything is fifty-fifty.  It means that both parents share in the rights and duties involved in raising their child. 

Surprisingly, with joint custody, you still have a primary parent, and the other parent gets visitation and pays child support.  In fact, the usual visitation is the same in joint custody as in sole custody.  Even the presumed amount of child support is the same.

Cindy Diggs, Board Certified in Family Law and Civil Trial Law, Holmes, Diggs & Eames, PLLC, 5300 Memorial Drive, Houston, Texas 77056, 713.802.1777 www.houstondivorceoffice.com

In a Texas divorce or paternity matter, the amount of monthly child support is usually determined by fixed percentages.  For one child, child support is 20% of net monthly income.  Two children is 25%, three children is 30%, and four or more is 35%.  These percentages are usually limited to the first $7500 of net monthly income.  The recipient’s income is rarely considered in Texas.

But the final court order will not state the amount to be paid as a percentage-- the court will only use these percentages to calculate the dollar amount of child support.  Once calculated, that resulting dollar amount will then be ordered to be paid each month.   A specific dollar figure makes the order clear and enforceable.  But when a spouse’s income goes up sometime after a child support order is signed, it is certainly possible to return to court for an increase of the child support.

Cindy Diggs, Board Certified in Family Law and Civil Trial Law, Holmes, Diggs & Eames, PLLC, 5300 Memorial Drive, Houston, Texas 77056, 713.802.1777 www.houstondivorceoffice.com

What happens to your pet in a divorce?  Although a pet may be part of the family, there is no such thing as “pet custody.”  Animals are “chattels,” or property in Texas. 

The court will decide who the owner of the pet will be, but is unlikely to arrange visitation or “custody.”  Some courts in Texas will enter injunctions that forbid either party from harming or mistreating a pet, because sadly, there are some people out there who will hurt an animal to get back at their spouse.

Sometimes pet issues just work out.  Children often want to bring their pets while they visit the other parent.   This way, both parents get to see the family pet. 

Here are things to do for your pet:  1) put the well-being of the pet first; 2) make sure the pet is well-cared for, and 3) avoid using the pet as a bargaining chip or tool to get back at the other spouse.

Cindy Diggs, Board Certified in Family Law and Civil Trial Law, Holmes, Diggs & Eames, PLLC, 5300 Memorial Drive, Houston, Texas 77056, 713.802.1777 www.houstondivorceoffice.com

Many grandparents are affected by custody orders for their grandchildren, and often see a reduction in the time they get with their grandchildren after divorce.  What rights, if any, does a grandparent have?

First, their adult child may allow a grandparent to see the children during the parent’s  own time—this is the easiest means of access. 

But, if the adult child does not want to provide access for the grandparent, there are fewer options.  Parents have the right to raise their children free from interference.  Absent abuse, courts must presume that a fit parent acts in the best interest of a child—including the decision as to with whom the child will have contact. 

Grandparents may seek access in limited situations such as  abuse or neglect by the parents or in the event of their death where denial of grandparent visitation would significantly impair the child’s physical health or emotional well-being.

Cindy Diggs, Board Certified in Family Law and Civil Trial Law, Holmes, Diggs & Eames, PLLC, 5300 Memorial Drive, Houston, Texas 77056, 713.802.1777 www.houstondivorceoffice.com