5 Myths About Family Law

by Kezie | Feb 4, 2021 | Family Law

5 Myths About Family Law

There are many myths and misconceptions about family law, but there are 5 common myths that I see often in my practice. I am going to dispel 5 of these common family law myths. Please note that these are specifically for the state of Texas.

Myth #1 – Sole Custody does not mean you have “full” custody.

In Texas, Sole Managing Conservatorship refers to the rights and duties awarded to a parent in an order. Often, people believe that the only difference between sole managing conservatorship and joint managing conservatorship is that one parent has more time with the child. However, this is not the only difference between the types of custody. Sole Managing Conservatorship refers to the parent getting to decide certain rights and duties such as designating where the child resides and goes to school and whether they could have invasive medical procedures or see a psychiatrist. That said, conservatorship has nothing to do with how much a parent is entitled to see their child.

Myth #2 – You will go to jail automatically for non-payment of child support.

It is a common misconception that if you do not pay child support, you will immediately go to jail. While you can go to jail for non-payment of child support, it is not an automatic process. First, a judge has to find you violated the order to hold you in contempt of the court and can place you in jail for not following court orders. Second, you can be found to be guilty of criminal nonsupport, which is “intentionally” or “knowingly” failing to provide court-ordered child support for a child under 18. It is a quasi-criminal proceeding, so you are entitled to representation and a hearing since your freedom is at stake.

While there will be penalties for not paying child support, you will not be automatically put into jail for not paying child support.

Myth #3 – You don’t have to pay child support if you have 50/50 custody.

It is a common misconception that if you have a 50/50 split or equal time of possession of your children then there will be no child support.

However, in cases where parents have a disparity in income, the court may order child support. Where one parent makes more than the other, the court may believe that it is in the best interest of the child for the lower-earning parent to have supplementary funds to care for the child.

In most cases, the court calculates child support according to base child support guidelines for each parent and then will award the difference to the lower-income parent.

Myth #4 – Assets are always divided equally in a divorce.

It is a common misconception that assets in a divorce are split down the middle because Texas is a “Community Property” state. In a divorce in a “Community Property” state, most of the property acquired during the marriage belongs to both spouses, and that property will be divided during a divorce. This includes both spouse’s incomes made during the marriage.

However, Texas designates that separate property is awarded to the owner. Separate property can include any property owned before the marriage, property gained during the marriage as a gift or inheritance, and earnings designated as “recovery” for personal injuries. Examples of these can include automobiles purchased before the marriage, birthday gifts, family inheritance, and awards from personal injury cases.
Assets can be divided equally but the court is not bound by that. A court may look at many different factors when dividing community property and may award one spouse a greater share of the community property.

Myth #5 – A child can choose where they want to live at the age of 12.

Many people believe that a child can choose which parent with whom they want to live once the child turns 12. However, in the state of Texas, a child can only make a decision with which parent to live when he or she turns 18.

However, once the child turns 12 years old, the court can consider the child’s preferences in the custody decision. One or both of the parents can request that the judge speaks with the child. In this conversation, the judge will discuss the child’s desires concerning residency, primary conservatorship, visitation, or any other issues which are involved in the underlying custody case. If the child is over 12 and the parents submit a request, the judge must meet with the child. The parents can still request that the judge meets with a child under 12, but the judge can refuse to meet with the child.

Technically, in Texas, a child cannot decide which parent to live with until he or she turns 18 years old, but a child has the right to express his or her preferences to the judge.