What can I expect with regard to possession for the parent with whom the child does not reside?
In most conservatorship cases the court will presume that the conservator who does not reside with the child should be awarded a standard possession order. The standard possession order is different if parents reside within 100 miles or outside of 100 miles.
If parents reside 100 miles or less apart from one another, the parent with whom the child does not reside can expect to be awarded the standard possession order which will generally mean that parent will be entitled to possession of the child on the first, third and fifth weekend; Thursday’s of each night during the week; 30 days during the summer and alternating Christmas, Thanksgiving and spring break vacations.
If parents reside more than 100 miles apart from one another, the parent with whom the child does not reside can expect to be awarded the standard possession order which will generally mean that parent will be entitled to possession of the child on either the first, third and fifth weekend or one weekend of that parent’s choice per month; 42 days during the summer; every spring break vacation and alternating Christmas and Thanksgiving vacations.
Obviously the presumption that is a parent should be awarded a standard possession order can be challenged. The court will consider the best interests of the child. For example if a the court determines that a child may be endangered by the standard possession order, the court may restrict the time of the non-primary parent, may order that the non-primary parent’s possession be supervised or place other safeguards to protect the child.
If a child is under the age of three, there is no presumption regarding a parent being awarded a standard possession order. Court’s will routinely restrict the period of time that the non-primary parent will have possession, or order that the non-primary parent’s possession be supervised by the parent with whom the child resides. The possession periods for a child who is under three can vary greatly and can be influenced by you and your attorney’s argument either for or against something close to standard possession. Ultimately, when the parent with whom the child does not reside is involved in the child’s life the Court will make an effort to transition to a standard possession order for the child who is under three as soon as the court determines it will be in the child’s best interest.
What does it mean to have fault/no-fault divorce divorce?
In Texas, a Petitioner for divorce must assert that there is at least one ground for divorce. In years past, Texas required that a party was at fault in order to acquired divorce.
The most common fault based grounds for divorce recognized in Texas include the following:
- Cruelty- that the other spouses cruel treatment was of such a nature that it rendered further living together unendurable, insufferable, intolerable or incapable of being borne.
- Felony conviction- spouse was convicted of a felony during the marriage and imprisoned for at least one year.
- Abandonment- spouse voluntarily left the spouse with the intention of abandoning the spouse and remained away for at least one year.
Texas now does not require a party to be at fault to allow a divorce to proceed; however, even in a no fault state the petitioner must articulate the grounds for divorce. The following are no-fault based grounds for a divorce:
- Insupportability- the marriage has become insupportable because of discord or conflict, the discord or conflict destroys the legitimate ends of the marriage and there is no reasonable expectation of reconciliation.
- Living Apart- spouses have lived apart without cohabitation for at least three years.
- Confinement in a mental hospital- one spouse is confined to a mental hospital for at least three years and it appears that the spouse will not recover or is likely to relapse.
Why should I allege fault if you don’t have to prove someone is at fault to get a divorce?
Divorce can still be granted in Texas based on fault even though Texas is a no-fault divorce state. The most common initial reason a client may choose to allege fault is so that he or she has an opportunity to air the dirty laundry, get back at the other spouse, or to expose their spouse’s wrong doing. This is not a good reason to allege a party is at fault. Although this may provide some emotional release, it will also likely result in nastier litigation and increased costs for the divorce.There are three good reasons, in my opinion, why one spouse may want to allege that the other party is at fault.
First, a spouse may want to allege fault if they think that the other party’s fault is relevant for the court when making decisions regarding conservatorship, possession or access to children. The fact that a party treated their spouse cruelly, or was unfaithful could obviously have a lot of bearing for the court when determining a parent’s moral code.
The second reason that a party may want to allege fault is that the court may consider fault when dividing community property. The court is charged with dividing assets in a manner that is “just and right”. If the court believes that the divorce is due to one party’s misconduct, the court should award more assets to the party who is not at fault.
Third, if the court determines that a spouse is eligible for spousal maintenance (alimony), the court may look at whether fault was a factor to determine the amount of spousal support, the duration of spousal support and manner of payment of spousal support.