Family law sometimes seems part Wild West, part “War of the Roses” and part “Boston Legal.” These perceptions may have some truth, but many are based on myths. Here are some top myths in Texas family law cases — debunked.
1. There is no alimony in Texas. Once, this was actually true. Texas historically has been a no-alimony state. Texas, however, has enacted and amended a maintenance statute.
Generally, Family Code §8.051 allows a court in a divorce to order maintenance in certain domestic-violence situations, if a spouse is disabled, or if the marriage lasted 10 years or longer and the spouse lacks income to provide for his or her minimal reasonable needs.
Family Code §8.054 provides that a maintenance order may last five years, seven years or 10 years, depending on the length of the marriage. Family Code §8.055 allows a court to order maximum monthly maintenance at the lesser of $5,000 or 20 percent of the spouse’s average gross monthly income. Texas has a form of alimony, indeed.
2. A court cannot divide unvested stock options. Many people fall for the myth that unvested stock options must be separate property because they are not totally earned by the time of divorce.
But Family Code §3.007 allows for the division of unvested stock options. It provides a formula that accounts for any pre-divorce efforts, post-divorce efforts and continued employment; it characterizes that percentage as separate property. The formula also characterizes a percentage for the portion earned during marriage as community property. Stock options are divisible in Texas.
3. Fault makes a huge difference in a property/debt division. Family Code §7.001 requires a court to divide the parties’ estate in a just and right manner, having due regard for the rights of each party and any children. In Murff v. Murff (1981), the Texas Supreme Court stated property division factors, and included among them are “[f]ault in the breakup of the marriage.”
So, fault does matter. But most judges will not look at fault as the end of the story. An affair, for instance, does not mean that one spouse will get no property and all the debt, and the other spouse will get all the property and none of the debt. How much do judges weigh fault? It depends on the individual judge.
4. Social media postings are irrelevant. Many spouses post on Twitter, Facebook, Instagram and other social media. Frequently, the children of divorcing parents also will post interesting items on social media websites. Even better, relatives, friends and paramours may also make scandalous posts. These postings can be admissible in court. Lawyers should beware of their clients’ reckless postings and pictures on social media; they could appear in court.
5. Child support is a game of chance. Another myth is that courts determine child support on an ad hocbasis. Typically, a person wanting to avoid paying child support will invent and discuss reasons why child support should be extremely low.
Most courts will set child support according to the guidelines in Family Code Chapter 154. These are rather scientific and apply a percentage calculation to a person’s net resources. In some instances, the court can exceed these guidelines, based on the child’s proven needs. But, it is rare that a court will fall far below the mechanical, guideline child support calculation.
6. Texas does not have personal jurisdiction for a divorce because a spouse moved away. Spouses with large estates sometimes move to or from a jurisdiction to gain an advantage of a particular state’s property division laws.
Family Code §6.305 states that Texas may exercise personal jurisdiction if one spouse continues to reside in the state and Texas was the last marital residence within two years before filing suit. The long-arm law also has the catchall that personal jurisdiction is proper if there is any basis consistent with the Texas and U.S. Constitutions.
So, all of the other factors for personal jurisdiction come into play, such as whether the parties owned property or conducted business in Texas. Additional grounds for personal jurisdiction are available if children are involved. Just because a spouse moves out of state does not mean that Texas loses jurisdiction.
7. Lord Mansfield still lives. In 1777, Lord Mansfield proclaimed that a husband was presumed to be the father of a child born to his wife in Goodright ex dim. Stevens v. Moss.This became known as Lord Mansfield’s rule, which was the law in Texas for generations.
Of course, in 2012, paternity testing exists. Over the past few years, Texas’ version of the Uniform Parentage Act in Family Code Chapter 160 has come to rely heavily on DNA testing to determine a father’s identity. Lord Mansfield is indeed dead, in Texas at least.
8. Divorces are easy, and anybody can do them. It is certainly noble for a lawyer who doesn’t practice family law to take a case for a person who is in need, but it is not usually an easy task. If custody, relocation or mental health are in issue, the family law case can be extremely complex, difficult and time-consuming.
Family law cases involving complex property estates are a mix of property law, business entity principles, business valuation principles, tax law, probate law, contract law and many other areas of the law. Litigants frequently underestimate the complexity of a family law case. An attorney should not make this mistake and should consult an experienced family law attorney for a thorough consultation.