Visitation – What is the Texas Standard Possession Order?

Published October 11, 2012 | By

The Standard Possession Order (SPO) is a default visitation schedule defined by the Texas Family Code that is used in the vast majority of Texas divorce cases involving children. It is extremely detailed and lengthy and is one of the main reasons that divorce decrees in cases with children are usually 30 to 40 pages long. The Standard Possession Order statute is Texas Family Code Section 153.3101 through 153.317.

Every order has its own particular provisions, so please refer to the specifics of your own order for guidance if you have one. Also note that all of the terms are subject to alteration, either by negotiation or court order. This article is designed to give a brief overview of the statute and how its key provisions work when the standard language is used without tweaking. Here are some of the key provisions of the Standard Possession Order, as applied to parents who live within 100 miles of each other (the statute is somewhat different for those that live more than 100 miles apart).

Weekend Visitation

The non-primary parent has weekend periods of possession beginning on the first, third, and fifth Fridays of each month. Note that not every month has a fifth Friday, but for those that do it means that the non-primary parent will have possession for two consecutive weekends (a fifth Friday in a month will always be followed by a first Friday on the following month).

The beginning time of the weekend period can either by 6:00 p.m. or when school is dismissed. The ending time of the weekend period can either be 6:00 p.m. on Sunday or Monday morning when school resumes, depending on which election is made by the non-primary parent. If the period begins when school ends on Friday the non-primary parent is responsible for picking the child up from school and if the period ends on Monday morning the non-primary parent is responsible for delivering the child to school.

Thursday Visitation

The statute provides for the non-primary to have visitation every Thursday during the school year. The standard visitation is just a dinner period, from 6:00 p.m. on Thursday until 8:00 p.m. that same day. However, the non-primary parent can elect to extend that visitation to begin as early as school dismissal on Thursday and to end at school resumption on Friday morning. In effect, this gives the non-primary parent the option to have at least one overnight per week and avoids going the extended period of time between weekend visitation periods without having the child overnight.

Holiday Visitation

I recommend you check the language in your order if you have one for all specific provisions that apply to your situation, or the language of the statute if you do not, and this is especially true for holiday visitation. Holiday periods are probably modified more than any other area of the Standard Possession Order schedule because every family is different and has different holiday traditions. Also, please note that the holiday periods trump the weekend and Thursday visitation periods. In other words, if there is a conflict the holiday schedule applies, not the weekend or Thursday schedules.

Summer – Generally, the non-primary parent gets 30 days in the summer. There are a number of ways this period can be scheduled under the SPO, with certain restrictions. The 30 days can be exercised in either one or two periods of at least ten days each. The non-primary parent is required to notify the other parent in writing of the summer schedule by April 1. If no notice is given then the default period is July 1 through July 31. There are a number of restrictions and details that are too lengthy to discuss in this post so see your order for the specific requirements in your case.

Christmas – In alternating years each parent gets either the first half or the second half of the Christmas break.The Christmas break is defined as beginning at either 6:00 p.m. on the day school is dismissed for the break or at the time of school dismissal, depending on whether the extension election is made. The break ends either at 6:00 p.m. the day before school resumes or at the time school reconvenes. The exchange time (the break between the two halves) is noon on December 28th. The non-primary parent gets the first half of Christmas during even-numbered years and the second half during odd-numbered years.

Thanksgiving – In odd-numbered years the non-primary parent has possession during the Thanksgiving break. In even-numbered years Thanksgiving goes to the primary parent.

Spring Break – In even-numbered years the non-primary parent has possession during Spring Break. In odd-numbered years this period goes to the primary parent.

Mother’s & Father’s Day weekends – Moms get possession of the child during the Mother’s Day weekend and dads get possession of the child during the Father’s day weekend.

Child’s Birthday – For the parent that does not have regularly scheduled possession of the child on the child’s birthday, that parent gets possession from 6:00 p.m. to 8:00 p.m. on that day.

So that is a somewhat brief overview of the Texas Standard Possession Order language. Again, please refer to your order and the language of the actual statute (and get advice from a lawyer) if you have specific questions regarding your situation.

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What Effect Does Adultery Have on a Texas Divorce Case

Published October 3, 2012 | By

This post will discuss the legal and practical implications of extramarital affairs on a Texas divorce case.

Adultery is a Statutory Grounds for Divorce in Texas

The Texas Family Code has long held that adultery is a grounds for divorce. See Section 6.003 of the Texas Family Code. Its use as a grounds for divorce has become far less significant since Texas became a no-fault divorce state many years ago. Nonetheless, it is frequently pled as a grounds for divorce and a judge can find that the grounds for divorce was adultery, not the much more commonly used irreconcilable differences.

Adultery Can Have an Impact on Property Division in a Texas Divorce

The Texas Family Code also provides that the court can consider fault in the divorce in dividing property. See Section 7.001 of the Texas Family Code. This gives the court the authority to make a disproportionate division if it believes that one side was more to blame for the divorce than the other party. Consequently, adultery can be a factor that leads to one spouse being awarded more property in the divorce case. How much of an impact it makes in any given case is highly dependent on the specific facts of the case and the predilections of the judge. To some judges affairs are a significant factor in a divorce case, to others they are more a symptom of an unhealthy marriage.

Adultery Generally Does Not Impact Custody or Access to Children

While affairs can have an impact on property division, they generally have no impact on custody or access issues. The court’s determination of custody and other access provisions are still governed by the overriding principle of “best interests of the children” as well as a number of specific statutes in the Family Code.

Thus, adultery is typically a non-issue in a custody case with one major exception. If the affair occurred or is ongoing in some way that the court deems to be harmful to the children, this can have a major impact. An example of this would be having the children in the presence of the paramore (boyfriend or girlfriend) prior to the divorce being finalized.

Adultery Can Complicate a Divorce and Create Hostility

So far we have discussed the specific legal issues in detail, but in my experience the practical implications of affairs on a divorce case are often much more impactful. I personally have seen many cases that initially appeared to be relatively calm, civil divorce cases that look like they would be resolved amicably turn into contentious, ugly battles after one spouse learned of an affair. This is especially true when that spouse believes that their marriage was “broken up by this homewrecker” and that there was nothing wrong with their marriage until the affair occurred. Situations like this can cause a divorce to turn into a lengthy, expensive nightmare of a battle.

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How To Calculate Child Support in Texas

Published July 8, 2012 | By

This video goes through the process of calculating child support in a typical Texas case. If you prefer, you can read the transcript below:

Video Transcript

My name is Scott Morgan and I am a board certified Texas family law attorney. In this video I am going to walk through an example of a very simple child support calculation.

In Texas child support is calculated using a formula from the Texas Family Code.  To calculate the child support amount you start with the payor’s monthly gross income.  That amount is then reduced to allow for certain deductions, such as taxes and certain health insurance expenses.  Once these deductions are made you have calculated the payor’s monthly “net resources.”

Note that this number is likely not the same as the payor’s actual take-home income.  There are a lot of deductions that come out of someone’s paycheck, for example 401k contributions, that are not factored into the calculation of monthly net resources.

Once the monthly net resources are calculated, you multiply that amount by a percentage to arrive at the monthly child support amount.  The percentage is determined by how many children there are, with a reduction in the percentage if the payor has other children he is legally responsible for.

As a simple example, lets take a payor who makes $96,000/year or $8,000/month.  Assuming this payor is not self-employed (the net resources calculation is slightly different for the self-employed), we would look at the statutory deduction chart and see that the monthly net resource amount would be $5,920. If we further assume that the child support is for one child and the payor has no other children, then the statutory percentage would be 20%.  We multiply the net resource amount ($5,920) by 20% to arrive at a monthly child support amount of $1,184.

This has been a very simple example and, as with everything in family law, there are certain exceptions that can apply, but this is how child support is calculated in the vast majority of cases in Texas.

I hope you found this video helpful. If you have any questions or suggestions for future videos please feel free to comment below.

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Pick the Right Divorce Lawyer – Here’s How

Published June 21, 2012 | By


This is a video by Scott Morgan, giving his three best tips on how to find the right divorce lawyer for your case. It originally appeared on his blog at austindivorcespecialist.com. If you would prefer, you can read the transcript below:

Transcript

I’m Scott Morgan, founder of the Morgan Law Firm. I am a board certified Family Law attorney and I have practiced family law since 1994. In this video I am going to give you my three best tips for how to pick the right divorce lawyer for your case.
My first tip is to find out choose a lawyer who is experienced and focused on family law and divorce cases.  Sometimes people hire attorneys for their divorce who have very little experience handling divorce cases, thinking that as long as the lawyer has trial experience of any kind that is enough.  Nothing could be further from the truth.   Family law is a very specialized area that is constantly changing. You really need someone whose focus is on family law.

Tip number two – find out what past clients have to say about the attorney.  There is no substitute for getting actual feedback from someone who hired this same attorney and worked with him or her.  If you were referred by someone you know who was a past client, all the better.   Ask this person what it was like to be a client of that lawyer and, if they had it to do over again, would that hire the same lawyer and why or why not? This will give you the very closest thing to the actual experience of being this lawyer’s client before you decide who to hire.

Lastly, tip number three – After you meet with the lawyer for the first time ask yourself if you would be comfortable working with this attorney.  No matter what the résumé says, no matter what the lawyer’s past clients say, if you just don’t feel comfortable with and confident in the attorney, you should keep looking.

Obviously, hiring the right divorce lawyer is a very important decision and one you want to get right the first time. Making the wrong decision and having to switch attorneys in the middle of a case is no fun.  But if you follow these three simple tips you are much more likely to find the right attorney for your case.

If your case is in the Austin area feel free to give our office a call and schedule a consultation.  We would be happy to see if we could assist you.

 

Posted in Child Support, Custody, Divorce, Parent-Child Issues, Property Division, Separate Property, Videos | Taged , ,

A Divorce Lawyer’s Tips on Co-Parenting

Published May 28, 2012 | By

As a practicing divorce attorney for the past 18 years I have seen hundreds of clients deal with situations that were gut-wrenching and emotionally draining. The most difficult of these situations are when there are children of the marriage that need to be raised by two parents, whether you are getting divorced or not. As difficult as co-parenting may be, it is a challenge that parents must rise to meet. Your marriage may end, but your obligation to do the best job possible in raising your children does not. And this obligation includes doing everything to help your child to have a healthy relationship with the other parent. The only way for that to happen is by co-parenting the child.

Although challenging co-parenting is definitely possible and in your child’s best interest. Here are a few tips on how to manage some common c0-parenting pitfalls.

When Communicating With Your Ex Keep it Civil

Depending on the particular circumstances of your divorce, it may be completely understandable that you have a lot of negative feelings towards your ex. Nonetheless, you need to put those thoughts aside and deal with your ex civilly, whether you genuinely feel that way or not. If you cannot act friendly towards your ex then at least try to treat the relationship like you would an unpleasant coworker or maybe a boss who you didn’t like. Deal with them as necessary and keep it as professional and civil as possible.

Avoid Negative Comments About Your Ex

One of the worst things you can do is to tell your child negative things about their other parent. Recognize that if you do this you are hurting your child far more than you are the other parent. If you need to vent, then do so with a friend or family member but shield your child from it entirely. Even if your ex bad-mouths you to your child, do not retaliate. Take it up with your ex and explain that, for the sake of your child you promise to never speak negatively of them in front your child and that you ask that he/she do the same.

Avoid Involving Your Child in Financial Issues

When it comes to dealing with money issues with your ex avoid discussing or involving your child. It can start innocently enough, “ask your father if he already mailed your tuition check to St. Josephs.” When the question is relayed your ex feels like he is being accused of failing to live up to his obligations and sends a message back with the child, this one a bit nastier. “Tell her it is not due for 3 weeks, so don’t worry about it.” And on and on, you get the idea. Avoid this kind of situation entirely by just calling, emailing or texting about all financial issues and keeping your child from feeling stuck in the middle.

Accept the New Spouse

It is normal for your initial (and maybe permanent) opinion of your ex’s new spouse to be a negative one. Keep it to yourself. Your child needs to feel that it is okay for them to form their own opinion of this new person in their life. Hopefully, that relationship is a positive one. Don’t worry about being replaced in your child’s eyes. While it is possible for a child to have an excellent relationship with a stepparent, there is no substitute for a healthy, strong relationship with a biological parent.

Tell Your Child How Much You Love Them

It may seem obvious that children need to hear this often (and not just young children, all children), but it is so important that it is worth addressing. When a child’s parents are going through a divorce they are very vulnerable and need frequent reassurance that they are important and loved. Don’t worry about telling them too often, you really can’t overdo it.

While co-parenting can definitely be challenging at times, it is worth it.  Do it right and when your children are grown they will tell you how much they appreciated that their parents (unlike many of their friends’ parents) were able to get along and avoid dragging them into their disagreements.

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