No Fault Divorce - Texas

In Texas a divorce may be granted for no reason other than the marriage relationship has become insupportable for the reason that there is discord or conflict, that it destroys the legitimate ends of the marriage, and there is no reasonable expectation of reconciliation.  In fact, most divorces are filed and prosecuted as no fault divorces.  The following is an excerpt of case law illustrating the manner the courts have interpreted this provision of the Texas Family Code.

In Cusack, the court stated: "[w]e concluded that it was the intent of the Legislature to make a decree of divorce mandatory when a party to the marriage alleges insupportability and the conditions of the statute are met, regardless of who is at fault." Cusack, 491 S.W.2d at 717 (emphasis added). This statement supports the conclusion that a petitioner's allegation of insupportabilty is not enough, they must also establish the other conditions of the statute are met, i.e., that there is discord or conflict, that it destroys the legitimate ends of the marriage, and that there is no reasonable expectation of reconciliation. The court also noted, "[t]he courts have no right or prerogative to add to or take from such a legislative enactment, or to construe it in such a way as to make it meaningless." Id. To remove any doubt as to the factual nature of those elements, the court concluded: "[a]s we view the [Family] Code, when insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by the evidence, a divorce must be granted." Id. (emphasis added). See also Baxla v. Baxla, 522 S.W.2d 736, 739 (Tex.Civ.App.--Dallas 1975, no writ).

 Even assuming, arguendo, that the trial court's statement that there is "no defense" to a petition for divorce on the ground of insupportability were a correct statement of the law, that would not relieve the petitioner of his duty to establish the statutory elements with adequate evidence. Any attempt to determine those factual issues without giving Teresa an opportunity to respond would violate due process. See Federal Sign v. Texas Southern University, 951 S.W.2d 401, 410 (Tex.1997). If Donald sought to avoid the burdens of trial, our rules provide for summary judgment motions. See Tex.R. Civ. P. 166a. His petition and affidavit cannot be deemed to be a motion for summary judgment. While the adoption of "no-fault" divorce dispenses with any burden to establish the source of the conflict rendering the marriage insupportable, it does not relieve the petitioner of the burden to establish the existence of the statutory elements.

The no fault divorce is one ground for divorce. If you are seeking a divorce that awards you a disproportionate share of the community estate than you may want to consider filing a fault based divorce. A fault based divorce is one of several fairness factors the court may consider when deciding whether to award a disproportionate share of the community estate. Clifford Swayze represents people in Williamson County as well as Round Rock, Cedar Park, Leander, and Georgetown for Divorce, Child Custody, and Property division issues.

Experienced Divorce Lawyer Clifford Swayze

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Client's Choice - Divorce Lawyer

Lawyer Clifford Swayze | Lawyer Family

In 2014 I was awarded the clients choice award by AVVO. Divorce, child custody, and family law in general are very difficult and trying times for people to deal with. I am proud to have been able to accept this award from my clients. Family law is a traumatic time for parents, as well as children. It is my goal to reach a settlement that is best for you and your family. My hope is that I may continue to try and help people resolve their disputes in the best possible way for their families. Since, moving my law practice to Round Rock I have experienced an amazing outpouring of support from the community. I look forward to serving the people of Williamson County. Thank you! Clifford Swayze - Round Rock Divorce Attorney.

Termination of the parent child relationship

A question that I frequently receive at my Round Rock Law Office concerns terminating the parental rights of the other parent that is not involved in the child’s life. Chapter 161 of the Texas Family Code deals with this situation. Generally this situation in relation to a divorce or child custody case where the parent that is primarily caring for the child starts to consider attempting to terminate the rights of a non-involved parent. Sometimes this question arises out of a genuine concern about the child’s physical health and emotional development and other times it is made from a position of selfishness.

Selfishness is a real concern for everyone involved in the family law system. The number one concern of everyone involved with the family courts including the attorneys, judges, and party’s is the best interest of the child. I think this term gets thrown around a lot, but rarely do people really stop to consider what is in the best interest of the child. Not Clifford Alan Swayze’s best interest, not his client’s best interest, but the child’s best interest. I think as a lawyer in a child custody case every conversation with your client should start with what do you think will be best for your child?

The honest answer to that question generally should be that both parents are actively engaged in the life of the child and that the child receives love and attention from both parents. Studies have shown that children raised within family household that is intact meaning has not gone through a divorce suffer the least amount of stress. Studies have also shown that children that live with both parents have a significantly reduced amount of stress from those with only access to one parent.

I understand that it is difficult to understand, but the rule is that children with a good relationship with both parents has fewer emotional developmental issues than children missing out on a relationship with one of their parents.

As stated above Chapter 161 of the Texas Family Code sets forth the grounds for terminating the parental rights of a parent. Amongst other reasons the code states that the court may order the termination of the parent child relationship if the court finds by clear and convincing evidence. Let me stop to analyze this sentence before we move on to the factors. The code specifically uses the word “may.” This term is used to indicate that something is a possibility. It not a term that implies the court actually has to do this if this factor is present. I think the term implies that the court has a choice to terminate if these factors are present.

The last part of the states that the court finds by clear and convincing evidence. This is a high level of certainty. If you take this into context with other levels of certainty the term can be understood with more clarity. For instance, the lowest level of certainty is reasonable suspicion. This is the level of certainty that an officer needs to pull you over for a traffic violation. The second level of certainty used in the legal system by lawyers is probable cause. An officer is required to have probable cause before he can place someone under arrest. This means that the police officer needs to be able to be able to reasonably articulate facts for why he arrested an individual. The next level of certainty is when some sort of civil suit is initiated such as a divorce, child custody case, suit affecting parent child relationship or suit to adjudicate parentage. The level of certainty required in this type of case is preponderance of the evidence standard. What this means is that the trier of fact needs to believe by 51% that the situation occurred that it is more likely than not. Two levels of certainty are higher than preponderance of the evidence. Clear and convincing evidence and beyond a reasonable doubt.

How certain would you want the court to be if someone was trying to terminate your parental rights or take your child away from you? On the other hand consider the health, safety, and well being of the child. How many children die a year due to abuse and negligence of the parents? This is a lot of information to consider. The stakes are generally high when a person is wanting to terminate a parent’s right to his or her children.

There is no doubt that a lawsuit of this nature will be a highly expensive venture. Judges are thoughtful when the possibility of termination a parents rights is before the court. When I use the term thoughtful I mean the decision will weigh heavily on the mind of the judge and the judge will be extremely cautious in making a decision. A termination is complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child’s right to inherit. Consequently, termination proceedings are strictly scrutinized and involuntary termination statutes are strictly construed in favor of the parent. It has been held by the Texas courts that “Actions which break the ties between a parent and child can never be justified without the most solid and substantial reasons.

For these reasons enumerated above the Texas Family code used the language “may,” when describing the courts authority to terminate the parent child relationship. This word gave the court authority to consider what is in the best interest of the child. Not only does the court have to prove that one or more of the factors laid out in chapter 161 is present, but also that the termination of the parent child relationship is in the best interest of the child. The court or jury must find that both elements are established by clear and convincing evidence.  Proving one element does is not enough to terminate the parent child relationship.

When a client comes into my office and says “Clifford Alan Swayze do you believe that I have chance at terminating the parent child relationship as to my child’s other parent,” I simply ask what do you think is in your child’s best interest and what are your reasons for considering this option. Do not attempt to prosecute or defend a termination law suit without the assistance of a good child custody lawyer. 

The Law office of Clifford Alan Swayze is proud to display our association with the Round Rock, Texas Chamber of Commerce.  Round Rock has a rich history and a bright future. The Round Rock Community is a thriving and diverse placed right in the heart of Williamson County.

Round Rock is an amazing place to work and conduct business. There is a highly educated workforce that is able to live and work in the same community. The Round Rock Chamber of Commerce is committed to serving as an Economic development partner with The Law Office of Clifford Alan Swayze as well as other businesses located within Round Rock.

Round Rock, Texas has a long history of thinking ahead when it comes to dealing with growth. The City of Round Rock’s focus on the future, while not forgetting the pas has paid off with explosive growth.

In 1848, Round Rock was founded in 1848 by Jacob M. Harrell on the North Bank of Brushy Creek. While the settlement was first named Brushy Creek, the United State Postal Office requested the settlement be renamed. On August 24, 1854 the settlement officially became known as Round Rock.

Round Rock was able to capitalize on its location in relation to the Chisolm Trail and later grew into the economic magnet that it has become today. The Law Office of Clifford Swayze is proud to support this growth and serve the community as a Round Rock Divorce Lawyer. 

History of domestic violence or sexual abuse

The Texas courts will consider a person’s history of physical and sexual abuse when deciding whether to give a person child custody. “In determining whether to appoint a party as a sole or joint managing conservator,” is the specific language the Texas Family code is using. What is code referring to when it uses the terms sole or joint managing conservator?

The term conservatorship is utilized to designate the legal rights and responsibilities of a parent in relationship to the child that is the subject of the family court order. The Texas Family code has created to types of conservatorship 1. Sole, and 2. Joint. The presumption is that joint managing conservatorship is in the best interest of the child. This presumption can be rebutted if evidence is presented to the court that joint managing conservatorship is not in the best interest of the child.

The term sole managing conservator means that the person with this designation is the only person with the legal right to make certain decisions for the child. The general rights include:

1.     determine the primary residence of the child;

2.     consent to medical, dental, and surgical treatment involving invasive procedures;

3.     consent to psychiatric and psychological treatment;

4.     receive child support; and

5.     make decisions concerning the child's education

The term joint managing conservatorship is utilized when the legal rights and duties of a parent are shared by both parties to the divorce or child custody case. While most of the rights are shared, certain rights will generally be exclusive to one party such as the right to receive child support and determine the primary residence of the child.

The Texas Family Code goes on to say that the courts shall consider “evidence of the intentional use of abusive physical for, or evidence of sexual abuse. The term “shall” means that the court does not have a choice. The court has no choice, but to consider this evidence described above. The courts shall consider this evidence only when a party to the divorce or child custody case has directed the abusive physical or sexual abuse towards the spouse, parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

The court may not appoint a party as a joint managing conservator when credible evidence is presented that the party has a history or pattern of engaging in the behavior described above.

However, this creates merely a preference. In a child custody dispute between to parents the Texas code allows such evidence that weighs heavily against the violent parent.

This article was written by Clifford Alan Swayze whose office is located at 1000 Heritage Center Circe, Round Rock, Texas 78664. If you are need to talk with an experienced divorce or child custody lawyer please follow this link to find out more information about his family lawyer experience.