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Marriage, Divorce, Children & Wills

Marriage & Divorce

 

Divorce

What is a COMMON LAW marriage in Texas?

To have a common law marriage in Texas, the couple must:

(1) Agree to be married,

(2) Live together in Texas as husband and wife, and

(3) Tell other people that they are married.

Is there a way to get my common law marriage recognized?

A couple that wishes to formalize a common law marriage can file a Declaration of Marriage. To do this, the couple should get a form for filing a Declaration of Marriage, sign it, and file it with the County Clerk in the County where the couple lives.

If I am married by common law, and no longer want to be in the marriage, do I have to get a formal, legal divorce?

YES.  There is no such thing as a common law divorce in Texas.  Texas does not recognize common law divorces.  It only recognizes common law marriages.  Separating or living apart in a common law marriage is NOT the same thing as a divorce.  Couples that do not legally end their common law marriage continue to be responsible for one another, each other’s finances, health decisions, etc., and they cannot marry other people.

Forms for Divorce

To get a divorce, what forms will I need?

1. Original Petition for Divorce – This form notifies the Court and your spouse that you wish to get divorced.

2. Answer to Original Petition – This is the form that notifies the Court and your spouse that you received a copy of their Original Petition and understand they want to get divorced.  It is not an agreement or a denial.  It is simply an acknowledgement to the Court that you understand your spouse wants a divorce.

3.  Final Decree of Divorce – This is the final Order used by the Court to officially divorce you and your spouse.  It can also order that one spouse’s name be changed to a “maiden” name or new name.

The Texas Supreme Court has created a packet with instructions and all the forms necessary to file an uncontested divorce, with no children and no titled land.  Download the packet by clicking the link below.

 

Download divorce forms

family

Kids, custody, support

The frequently asked questions below can help you better understand your rights as a parent under Texas law.  For a free consultation and assistance, call the Attorney for Students at (512) 245-2370.

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Is it illegal to get pregnant before turning 18?

No.  Texas does not criminalize people for becoming pregnant before turning 18.

Could someone get in trouble for being pregnant?

Yes.  If the pregnancy resulted from rape or incest, the perpetrator (the rapist or incestuous older person) could be arrested and charged with a crime.  Texas laws do not prohibit anyone from getting pregnant so long as both parties were 17 years old or within 3 years of each other's age, and not immediately related.  Immediate relations include parents, siblings, aunts/uncles, children, and first cousins.

Example: It is legal for a 50 year old man and an unrelated 25 year old woman to get pregnant.

Example: It is legal for a 15 year old and an unrelated 16 year old to sleep together and get pregnant.

Example: It is ILLEGAL for a 20 year old to sleep with or impregnate an unrelated 16 year old person.  Too much age difference with underage person.

Example: It is ILLEGAL for a 30 year old woman to get pregnant by sleeping with her 25 year old nephew.  Incest.

I'm pregnant and thinking about my options. Do I have to tell the father?

No.  A woman is free to decide what actions she wishes to take during her pregnancy. 

Is abortion illegal in Texas?

No. Texas laws continue to change and develop but a woman still has the right to decide whether or not to terminate her pregnancy, so long as she makes that decision within the first 20 weeks of her pregnancy.  The manner and method by which she can obtain a pregnancy also continue to change in Texas and she may have no choice except a surgical procedure.  Current Texas law requires a woman to undergo an ultrasound and wait 24 hours before obtaining an abortion. 

Can I be forced to have an abortion?

No. Texas laws continue to change and develop but a woman still has the right to decide whether or not to terminate her pregnancy. 

Do I need the father's permission to give up a child for adoption?

Maybe.  It depends on whether or not the father has been recognized as the legal father. (See below for info about legal vs. biological father.)  If the child's legal father has been established, the father must end his legal relationship in order for an adoption to take place.  If no legal father has been recognized, the mother or possessory conservator may relinquish custody and put the child up for adoption.

I've just learned that I'm a father. Can I get in trouble for not being there during the pregnancy?

No.  A father's duty to support his offspring does not arise until legal paternity has been established. For married couples, Texas law assumes the husband is the father and puts his name on the birth certificate.  If a child is born to an unmarried mother, the biological father will not become the legal father until both parents submit an Acknowledgment of Paternity (AOP) to the Bureau of Vital Statistics.  An unmarried father must submit this form before he can apply for visitation rights. 

What if I'm not sure the child is mine?

Anyone who believes or suspects that a child is not their biological offspring may request a paternity test.  There is NO CHARGE for a paternity test.  For more information, contact the Texas Attorney General's Paternity Opportunity Program at (866) 255-2006.

What's the difference between a biological father and a legal father?

The biological father is the person whose sperm was used.  The legal father is the person responsible for supporting the child financially.

Can I be banned from seeing my child if I don't pay child support?

No.  The right to visitation and the right to pay child support are two separate legal issues.  The inability or unwillingness of one parent to pay support does not prevent that same parent from being able to visit and/or communicate with their child.   Texas law recognizes that a parent may strongly desire to visit their child and take an active role in the child's life, but be unable to meet monthly child support obligations due to unemployment, disability, or illness.   Likewise, even a parent who is rightfully frustrated by a lack of financial support cannot seek revenge by refusing to let the non-paying parent visit the children.

Why do I have to let my child visit someone who isn't paying support?

Texas law makes a strong distinction between visitation rights and financial support obligations.  A parent's right to visit with their child is rarely affected by their financial situation.  A parent that has been court ordered to pay support and consistently refuses to pay could be sanctioned by the court and ordered to serve time in jail.  However, that same court may also require the custodial parent to arrange for visits to the other parent while in jail.  The general idea is to keep children in contact with their parents in every situation except those that may physically or emotionally harm the child.  Though it is not ideal for a child to visit their parent in a supervised lockup, it may still be less harmful than preventing that child from seeing their parent entirely.  A parent who refuses to let their children visit with the non-paying parent risks losing custody and having to pay court sanctions for failing to abide by the court's orders. 

What is custody? What is a conservator?

Custody is the legal term for having the right to make decisions about your children.  All parents can have their custody rights limited by a divorce order.  Texas does not use the terms "full custody" and "joint custody" to describe divorced parents.  Instead, Texas calls each parent a "joint managing conservator" and one parent is designated as having the right to determine primary residence.  This parent is known as the "primary managing conservator".  In situations where only one parent is alive or acknowledged, the term used is "sole managing conservator."    The basic idea is that each parent has the same right to make decisions for the child but one parent (the primary managing conservator) also gets to decide where that child will live and sleep most nights.

Who decides when I can see my child?

Parents are free to come up with any visitation agreement that they want.  The state of Texas and court system will only get involved if both parents disagree on a visitation plan.  Assuming that both parents are decent and non-abusive, the state of Texas will likely impose its Standard Possession Order, as written in Ch. 153.3 of the Texas Family Code.  There are about two standard orders - one order for families that reside within 100 miles of one another and another for families that live more than 100 miles apart.  The SPO for people within 100 miles generally gives the possessory parent (i.e. the parent who the kids don't live with most) the right to visit their child every other weekend from 6pm Friday until 6pm Sunday, every Thursday evening from 6pm-8pm, two weeks in the summer, the week of Spring break in odd numbered years, and at least 2 hours on the child's birthday every year.  Major holidays alternate between parents each year with one parent getting Thanksgiving and one parent getting Christmas. The respective parent has the right to visit the children every year on Mother and Father's days.  Example: Dad gets children for Christmas in even years and for Thanksgiving in odd years. 

Can I be forced to visit with my children?

No.  A person cannot be forced to visit or communicate with their offspring.  However, a parent has an obligation to support their children and that parent can be forced to pay child support for a child even if they've never met or spoken.  It is legally possible for someone to pay child support for 18 years and never communicate with the child benefitted by the support.  While a parent may be required to respond to a state agency or school official about their children's welfare, that parent is not obligated to respond to the child's calls or communications. 

Example: Ellen, the non-possessory parent, pays child support every month.  Ellen must respond to requests from the Attorney General about late support payments.  Ellen does not have to answer her child's emails asking where Ellen has gone.

My children are adults. Can I force them to talk to me?

No. There is no law that requires children over the age of 18 to keep in contact with their parents.  In fact, you could be charged with harassment if your child has made it clear that they do not wish to speak with you and you continue to contact them.  However, if that parent is also responsible for helping you out financially and you refuse to call them back, you may find out that you can't call anyone because your parent stopped paying your cell phone bill. 

What is child support?

It is money and financial support paid to cover the normal costs and expenses of raising a child. A Texas court may order a parent to support his or her child until the child turns 18 years-old, or graduates from high school (whichever occurs later), or until the child marries or dies, or is emancipated (declared an adult) by court order. If the child is disabled, the court may order a parent to financially support the child indefinitely. 

Who pays for child support?

The possessory parent usually pays support each month to the primary managing conservator.  In basic terms, the parent with weekend visits must pay support to the person with whom the child lives most often.

How much does child support cost?

There is no maximum amount of support that a parent can pay to support their child.  Parents are free to decide how much support is needed, who pays for what, when those payments are made, and to whom the payments are given.  If parents cannot or do not make a child support agreement, either parent can ask the state of Texas to determine how much support is needed.  Texas has developed a mathematical formula to calculate child support and it looks at a person's total monthly earnings, personal medical costs, and tax obligations.  For detailed information about calculating support and an online calculator, visit the Texas Attorney General's website @ https://www.texasattorneygeneral.gov/cs/welcome-to-the-child-support-division

What does the Attorney General's office have to do with child support?

The Texas Attorney General assists parents seeking child support payments from Texas residents. Any parent with a child support court order can hire the Texas Attorney General to collect those child support payments each monthly by locating the absentee parent, contacting that parent's employer, and garnishing the wages of that parent.  These support services are provided by Federal law and are often provided at no cost to you.  The Attorney General's office also runs a child support evaders program that helps locate and bring to justice delinquent parents.

Does the mother always win in a custody case?

No.  A common misconception of divorce and child custody is that one parent, usually the mother, gets everything she wants in court and the father gets stuck paying bills.  A court will award custody to the parent that is most capable and that wishes to have primary custody.  A court will look at each parent's ability to financially, emotionally, and physically support the child.  A single father who works full time, is emotionally stable, and has a secure home would be awarded primary custody over a mother who is unemployed, living with friends, and dealing with depression.  The mother can be ordered to pay child support to the father.

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