Texas

Part of Real World Divorce: web edition | Kindle edition

Our questions about Texas law were answered by Richard Orsinger, an attorney with nearly 40 years of experience handling family law cases in a variety of jurisdictions within Texas. Orsinger was educated in Texas, graduating from the University of Texas law school in 1975. Orsinger has won every possible award for a Texas family lawyer, including being named one of the "Top 100 Lawyers" in Texas every year since 2003. See http://www.orsinger.com/ for a full biography.

Orsinger handles a 50/50 mix of male and female clients, though the majority of cases are ones in which a woman is the "petitioner" and a man is the "respondent" (corresponding to the "plaintiff/defendant" nomenclature in other states).

Texas has more variation than any other state in how cases might be heard. "Most large cities in Texas (e.g., Houston, Dallas, Ft. Worth, El Paso, Midland) have dedicated family law courts," explained Orsinger. "In those courts a judge is assigned to the case for its entire length. But in smaller cities and rural areas divorces go to general courts with random assignment to a judge on the day of trial." Litigants have the right to a jury trial in custody and relocation cases. When do litigants select juries? "When they think that a judge is generally biased in favor of the opposite sex," says Orsinger, "but of course that's not possible to know in those jurisdictions where the judge is not assigned until the day of the trial."

On the other hand, Texas has less variation than most other states in the outcomes. Unless the plaintiff and defendant agree on joint custody, a judge will award sole custody to one parent. And, according to Orsinger, it is usually the mother who wins a custody lawsuit. However, losing custody in Texas does not result in a New York-style 83/17 time split nor litigation over the child's schedule. Orsinger was on a committee a couple of decades ago when the state adopted a "standard possession order" that spells out the schedule for the loser parent: "The Legislature got sick of everybody fighting for visitation and they adopted guidelines. The family code says that you don't automatically apply this order for children under three years of age but judges typically still use it except when a child is nursing or in a crib." The bottom line of this standard possession order is that the loser parent ("possessory conservator") can elect to take care of a child every Thursday night and every other weekend (Friday through Monday nights, which means four nights in a row if combined with the Thursday). How about summers?

if a possessory conservator:

(A)  gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or

(B)  does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;

(For parents who live more than 100 miles apart, this is extended to 45 days.) Can the parents hire lawyers to fight over Christmas? Not by statute: "the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;" Long weekends? Just refer to the section of the law titled "Weekend Possession Extended by Holiday."

Parents can agree on a different schedule if it makes more sense for them and/or their children, but if they don't agree, instead of the children's college fund being drained to pay attorneys, the parent who loses custody will take care of the children up to 43 percent of the time on a schedule prescribed by statute.

A parent in Texas can collect money every month until the child turns 18 or graduates from high school. The formula is simple: 20% of after-tax income for one child, 25% for two children, 30% for three children, 35% for four children, 40% for five children, and "not less than 40% for six children." The income on which this is calculated, however, is capped at $8,550 per month such that the maximum revenue from one child is $1,710 per month ($20,520 per year). If a defendant is rich, can a judge ignore the cap? Orsinger notes that "the Court has some discretion to deviate. They never deviate down. Sometimes they will deviate up, but most judges will go by the guidelines and if they will give extra money it would be in the form of paying for camp, private school, or other extras. A judge might go to $2,000/month for one kid, but $2,250/month would be pretty unusual." The Texas Attorney General's web site has an authoritative calculator.

[Note that $20,520 per year to take care of one's own child is 2.5X what the state will pay a foster parent to take care of someone else's child. It is between 2.5X and 4X of what middle class Americans actually do spend on a child (see the Methodology chapter).]

Note that these amounts are owed regardless of the winning parent's income, i.e., a parent who owns 10 oil wells and manages to obtain custody of three children could collect $2,565 per month ($30,780 per year) from a parent with an upper-middle class job. These amounts are also the same regardless of the amount of time that a child spends with each parent.

Will a court order a defendant to pay for daycare on top of child support? "If they are below the child support cap, no. If above the cap then a judge might do that," says Orsinger. What if a plaintiff doesn't have a job but simply doesn't want to be burdened with taking care of children? "No. That would undermine the guidelines."

As in a lot of other Western states, in Texas the child of divorce or unwed litigating parents does not have superior rights to college funding compared to the child of an intact marriage, i.e., a court cannot order a parent to pay for college.

By statute, a child's preferences regarding where to live will be taken into account when a child is 12 years of age, this is not binding on the court. "From a practical standpoint the choice of the child becomes important when child is 15 or 16 and can drive him or herself places. Judges are suspicious of manipulation. A lot of times 13-year-old girls will want to live with dad because he will let her wear makeup, and otherwise have more freedom."

A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is valid in Texas: "You can contract for anything you want except you cannot contract away a child's right to support. The standard is whether an agreement was unconscionable when signed." What does it cost to defend the validity of a prenuptial agreement? "I'm just going to trial on the question of the enforceability of a post-nuptial agreement. It will cost my client $200,000. Litigating a prenuptial agreement generally costs anywhere between $50,000 and $750,000. That's why as a practical matter I counsel my wealthy clients to offer something that can be calculated from the face of the contract. You want to avoid a dispute that has to be litigated regarding calculation." What would that look like given a medical doctor earning $500,000 per year with $10 million in the bank? "I would advise one month of alimony after a divorce for every month of marriage at $5,000 per month."

Is there a practical right of appeal in Texas? "I'm a board-certified appellate lawyer. Appeals are real in Texas. Across the board in all areas about one third of cases are altered by appellate court.  No one has ever calculated the statistics just for family  law. The standard of appeal for family law is 'abuse of discretion' and it is much tougher standard to meet than for most cases. I get reversals by coupling the outcome with a legal error. In child support there are no legal errors. On custody it is very difficult to get a reversal, particularly to a jury, because there is usually evidence on both sides to support any outcome. On property divisions where there are complicated legal points, that's where appeals are plausible." [Translation: If what upsets you is the custody or child support award, an appeal is unlikely to be helpful.]

The Annual Statistical Report for the Texas Judiciary, Fiscal Year 2013, states that "family law cases [386,000 filed; the 1.17 million child support cases are considered separately] now make up the largest share of the cases added at the district courts." The report chronicled a 454 percent increase in the number of child support cases over the preceding two decades compared to only a 4 percent increase in the number of divorces. More than 80 percent of people who started a divorce or child support lawsuit were represented by attorneys. Thirty one percent of cases went to a bench trial while only 0.1 percent were decided by a jury. The average time for an appeal to be heard in a civil case was 8.3 months. Only 6 percent of appellants were successful in obtaining a reversal.

State background

The average hourly wage in Texas is $20.97 per hour. A person who goes to college at University of Texas in Austin will spend approximately $100,692 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full-time is $41,400 per year ($32,664 after federal income tax). The corresponding man earns $50,000 per year ($38,456 after tax).Texas is one of the most efficient states in the U.S., collecting roughly 7.6 percent of state residents' income to run state and local government (compare to more than 12 percent in New York, New Jersey, and Connecticut; source: Tax Foundation). Texas has no individual income tax and, adjusted for demographics, some of the nation's best schools.

The average annual cost of child care is $8323 for an infant and $6414 for a four-year-old. The total cost of child care from age 0 through 12 is about $53,366 in commercial settings or $41,263 in a family care setting.

For a man who goes to college and then works for 14 years, his total after-tax spending power would be approximately $416,614 (14 years of average earnings minus college outlays). For a woman who goes to college and then works for 14 years, the comparable number is $331,740.

A childless man who goes to college and works for 14 years at the median wage will have a total spending power of $437,692 (income from work minus college costs). After adjusting for USDA-estimated child-related costs, he would have a higher personal spending power by collecting child support when he can get at least $2,776 per month. This is above the $1,710 per month cap, however, and therefore is not obtainable. With custody of two children from two different co-parents, he needs $1,763 from each mother to come out ahead financially. Again, this is above the cap.

A childless woman who choose college and work will be able to spend $356,604 on herself. After adjusting for USDA-estimated child-related costs, she needs $2,401 per month to come out ahead as a single mother. This is above the cap. With two children from two different fathers, however, she needs $1,576 from each father to have a superior personal spending power compared to the college/work scenario. This is possible when suing men earning at least $94,560 per year after tax.

Among Texans surveyed by the U.S. Census Bureau in March 2014, 93 percent of those collecting child support were women. Among women aged 30-40, approximately 21 percent collect child support.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

Orsinger: "If the woman were my client, the first thing that I would say is 'Your husband may have been an awful husband but he has a chance to be a good father' and 'Good strong interactions with both parents is what is best for a child.'"

According to Orsinger, the man is in a world of hurt whether this case is decided by a judge or jury. "Most judges would not approve of the man's choice. He went off with a younger woman and delegated child rearing to a nanny. A jury would also favor the woman because they would be offended by the man's behavior. Juries are generally more favorable to men than are judges unless a man has been immoral. On the other hand, an Austin jury might not care about morality and will try to decide who has better parenting skills."

What's the effect of the fashion model? "There is always a concern that a new wife will try to become a child's mother. Judges and juries are both sensitive to that. They will wonder what kind of mother this young fashion model will be to the child. How serious is she about caring for the kid."

Orsinger predicts that the physician mother in this case will get primary custody and receive child support from her slacker husband. How much can the high-earning doctor extract from a guy with no obvious job? "The judge will either presume that he could earn minimum wage and base child support on that, or look at his actual earnings history. But if he never made any money, then it will be minimum wage. A judge could come up with an income imputation if he were really angry with this father, but an appeals court would probably send it back."

Texas is a community property state and this was a short marriage with limited property, so Orsinger did not predict that the husband could get anything significant from the wife in the way of alimony or property.

How about legal fees? Orsinger gave a more realistic answer than some attorneys we interviewed: "Custody cases are the most expensive cases in Texas because there is really no limit on what you can spend. Every single person that knows you is a potential witness. You're easily looking at $250,000 per side if there is money to spend. There is nothing more important to people than their children. If they have money to spend they will spend it unless their lawyers rein them in. You can always hire more psychologists and depose more psychologists. You can always depose more teachers. I had a custody case ten years ago where the fees were $2 million per side. It was a 13-year-old boy with an alienating mother and supervised visitation."

Given that the defendant (respondent) has no income, will the plaintiff (petitioner) have to pay his legal fees?  "Possibly she will, but due to his affair a lot of judges would not award fees."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

"Generally judges and juries are pro-mom until boy turns about 12," notes Orsinger, predicting custody to the mother. "This is prohibited by our equal rights amendment but you can't change cultural phenomena. We have a significant Hispanic population and they have an unmistakable pro-mom bias. Juries are strongly pro-mom unless a mother has acted improperly, in which case women on a jury will punish that mother. Judges may look at custody to the father if the mother has taken drugs or allowed the child to be injured."

Orsinger worked out that the mother would receive $1,468 per month for all four kids, about $17,616. Thus the mother, filing as "head of household" with 4 dependents, would have an after-tax spending ability of $53,404 plus $17,616 = $71,020. The father, filing single, would have an after-tax spending ability of $31,836. If they adopted the standard possession order, the father would thus have the kids with him 43 percent of the time and have roughly the same expenses as the mother (dominated by housing) but on less than half the income. In fact, if the father were to remarry, his family of six would be right at the 2014 federal poverty guideline of $31,970.

Can a litigant here get a leg-up by alleging sexual abuse? "One seldom sees abuse allegations advanced anymore. It was epidemic in the 1990s. Typically it is done using the cover of a pediatrician to report the abuse." [So a parent would express a concern to the doctor knowing that the doctor would be required to then report the alleged abuse to the state agency.] Orsinger advises his female clients against pursuing this avenue of advantage-seeking.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

This is a simple one for Orsinger: "Mom gets custody. Most of the doctors that I know don't have time to raise kids." Unlike some other states that assume there will be a new division of labor following a divorce, Texas looks at what happened during the marriage and attempts to replicate that going forward. "The historical role is important because it provides a track record of how well she can do. Her getting custody is a sure thing. The dad can say that he is going to cut back on his work and do this but how can we know? If the divorce goes on for 6-12 months and he has in fact cut his practice back, he might be able to make a record while the divorce is pending."

Child support would be at the $1,710 per month guideline maximum. Alimony in Texas is rehabilitative only. "You have to prove that you can't support yourself, including out of the property division. We call it 'spousal maintenance'. You must be married for at least 10 years to get it. It is capped at $5,000/month or 20% of gross pre-tax income, whichever is smaller. We don't even bother to negotiate over it. Following marriages longer than 30 years, a judge can award spousal maintenance for up to 10 years." (Contrast with Massachusetts, for example, where a marriage longer than 20 years can yield lifetime alimony and there is no limit on the amount, or Florida, where "permanent alimony" is regularly awarded following 14-year marriages and sometimes after 7-year marriages.)

How about property division? Under Texas law, unlike New York, the medical degree and license cannot be marital assets. "Property division is discretionary with the court and ranges from 50 to 60%. In this case, it will likely be allocated disproportionately to the woman because her earning capacity is less. Also, just by getting the kids she will get 60%. We follow the same community property rules as California but without a 50/50 rule. A Court can consider fault in the breakup of the marriage, cruel treatment, earning capacity, health, age, etc. It is an equitable decision based on the discretion of the court and therefore very difficult to reverse on appeal. However, it is generally in the 50-60% range unless someone has been awful. With immorality or violence one sometimes sees more than 60%."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

"It would be very difficult for the man to get custody unless he can show that she has a boyfriend who is a danger to the child. Parenting time will not be the standard possession order. Maybe 2-hour visits plus all day Saturday. There is not a lot of consistency with children this young because judges have different opinions about what is best for a child this age."

Child support will be at the $1,710/month top-of-the-guidelines level, with no alimony and with the doctor's premarital property unreachable due to Texas's community property law.

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

"I've done about six of these," noted Orsinger. "Sometimes the father doesn't know that the child has been born until the child reaches the age of 12 or 14 and he owes $350,000." If a mother keeps quiet for 18 years and sues a month before the child's 18th birthday, can she collect 18 years of back child support plus interest? "Yes," said Orsinger, "but often it is the Attorney General doing this to recover Welfare and AFDC payments. There is a lawyer in San Antonio who does contingent fee cases as well. The interest that is added can triple the amount [note that courts can use much higher interest rates than banks charge]. A person in his 50s or 60s can find out that he owes $375,000. Right now there is a little bit of discretion for the judge but definitely a judge can order support retroactive to the child's birth."

How much money flows in this scenario? "This lady will collect the guideline cap of $1710 per month plus her attorney's fees." [See the Relocation and Venue Litigation for how the mother might be better off if, for example, the music festival had been in California or Massachusetts, she were to move to California or Massachusetts prior to giving birth.]

Orsinger says that the mother will automatically get custody but "the father could visit on the 43 percent statutory schedule. He could be awarded custody if the woman's lifestyle is awful."

Who is most at risk of being sued like this?  "A rich man who is married with a girlfriend who knows that she can never get the money."

What if the mother gets married at 25 to a man earning $100,000 per year? "This will have no effect. The obligor's income is the only factor for most judges."

Quirks

Texas takes a different position than most other states when it comes to the cash entitlement of different children from the same parent, e.g., where the first plaintiff to sue will collect more in child support than the second plaintiff.. "The Texas legislature has adopted a table on out-of-family kids (up to 10). Child support for two different mothers should be the same if they are both on the guidelines."

As in other states, however, Texas establishes financial rewards for having children with multiple co-parents. "If all fathers have the same income," Orsinger notes, "a woman with three kids from three different fathers would collect 60% of one father's income (20%, 20%, 20%) compared to 30% of the father's income for three kids with one father." At the top of the guidelines, three children with the same father would yield $554,040 over 18 years; three children with three different fathers would yield $1.1 million.

Removal

How easy is it for a parent to move out of state with a child? "It is called relocation here and everything is decided according the 'best interests of the child' standard."  In other words, removal/relocation is much more difficult than in states such as Massachusetts, North Dakota, or Rhode Island where showing that a move is in the custodial parent's best interest is sufficient. "As a practical matter, 80 percent of the time you can't relocate," Orsinger says. "In Austin and Dallas they routinely prohibit relocation. If you know who the judge is you will know whether they will allow it and maybe request a jury. There is always a right to a jury trial in a relocation case."

Why is removal so tough in Texas? "Legislature and courts put more weight on frequent contact with the visiting parent. This is in the family code as public policy. The concern regards the ability of the non-custodial parent to go to school and watch games, performances, etc." Orsinger was too modest to point out that the headline case in this area is one that he tried: Lenz v. Lenz, decided by the Supreme Court of Texas in 2002.

Closing Thoughts

Orsinger expects to see big changes in the law due to same-sex marriage. "The constitution was amended in 2005 to limit marriage to one man/one woman. We will have to grapple with how people are exercising their discretion and who has standing in custody."

Orsinger does not expect any changes to child support or custody laws nor any pressure for a presumption of joint custody. "We have a family code that is over an inch thick. Most of the major construction has been done. We're now down to fine-tuning so that cases move more smoothly." He does see, however, potential for codification of the rights of grandparents: "In every legislative session there is a fight about grandparents. Currently they have very restricted rights."

Authors' Notes

Texas is an interesting laboratory for people who advocate changing divorce laws in other states.

Divorce, custody, and child support plaintiffs in Texas cannot mount as threatening a lawsuit as in most other states. The community property law prevents a short-term spouse from attacking premarital assets, for example. The child support cap closes off what in other states would be a major profit opportunity and the ability to threaten a defendant with 18-23 years of $200,000 per year in payments. The standardized parenting time schedule means that a defendant cannot be threatened with a near-complete loss of contact with his or her children (since even after losing, a defendant can still opt to take care of the kids 43 percent of the time as long as he or she doesn't mind paying again for the kids' expenses, such as housing, that he or she already paid for through child support). One would expect, therefore, that epic lawsuits would be uncommon, but this is only partially true.

There is enough wiggle room in the statutes and discretion available to judges that a defendant can be threatened with a worse-than-standard outcome. For example, a high-income defendant may be characterized as an abuser or child molester and the truth of that characterization must be sorted out at a potential cost in legal fees of $1 million or more. Separately, the fact that Texas judges will not award joint custody means that a defendant parent may wish to avoid being labeled as having a secondary role and make an investment in legal fees that is not economically rational. In other words, as long as states set up a system whereby one parent will be judged inferior and lose custody, people will apparently spend a lot of their resources to avoid that loss, even if the difference between 43/57 and 57/43 coupled with the capped child support available in Texas does not constitute a rational basis for a fight.

Texas law limits profits from short-term marriage or unwed child support and thereby limits litigation in those scenarios. However, for middle-class two-income Texans, especially those with multiple children, the statutes do establish a rational basis for a fight. One parent will be rearing the children 57 percent of the time on the old family income. The other person will be rearing the children 43 percent of the time at roughly the Federal poverty level. A Texas plaintiff can't count on getting an 83 percent share of the kids, the house, and most of the defendant's disposable income as in New York, so it can't be characterized as a "winner-take-all" state. But from a practical point of view, for a lot of middle class couples Texas could be characterized as a "winner-take-most" state and that is a recipe for litigation.

Advocates for making jury trials available to divorce lawsuit defendants should be slightly discouraged by the Texas experiment. The availability of a jury is critical to achieving fairness when a judge is known to be biased. However, to the extent that advocates hope that a jury system would eliminate the traditional bias towards mothers in custody cases, Orsinger's experience suggests that these hopes are misplaced.

In our view the statutory parenting time schedule ("Standard Possession Order") is the most interesting idea from the Texas laboratory. It increases certainty for litigants and dramatically reduces the scope for litigation over children, therefore potentially preserving family assets for college expenses. Note that attorneys we interviewed in other states generally reacted negatively to the idea. In the event of a failed negotiation regarding a child's schedule most attorneys wanted the option to litigate the issue, with persuasive arguments presented on both sides and a customized decision issued by a judge.

Finally, it was a real pleasure talking to Orsinger. He has the demeanor of a southern gentleman combined with the thoughtfulness and reflection that we've heard from law school professors. We would not want to be on the other side of him in a courtroom!

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