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Name: Hal Davis

Location: Plano, Texas, United States

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If you want legal advice, go to a lawyer. If you want relationship advice, go to a professional counselor. But, since you asked, here's a little relationship advice from a lawyer.

Way too often, I'll see folks come to me about a second divorce -- less than a year or two after their previous divorce. I've been curious about this phenomenon, and have been paying attention to some information tidbits that float by me.

At a conference for divorce lawyers a very interesting statistic was thrown out. I can't remember it exactly, and have been unable to run down the source, but the essence was something like this: "Of all relationships begun within 2 years of a divorce, in which the new relationship ends in a marriage, 87% of those new relationships end in divorce."

You may need to read that several times to really pull it apart, but the essence is that after a marriage, you need some time to re-set, to become an individual, before you can productively enter a new relationship.

The image that comes to my mind is that of a memory foam mattress "as shown on TV". You push your hand into the mattress, then remove your hand, and for a while the outline of the hand is still visible.

To me, it seems that whether it's a good marriage or a bad marriage, being married to someone leaves an imprint on you like on that memory foam mattress in the TV commercial. We form patterns of behavior and thinking because of the marriage, whether they're productive and helpful behaviors or not.

Then, when that relationship ends and a new relationship comes along, if it hasn't been long enough for the imprints of the previous marriage to fade, a lot of the behaviors and patters of the new relationship are reactionary: the primary filter is the extent to which the new behaviors or values or whatever are different from or the same as the previous patterns.

There's a lot to be said for long courtships, but there's also a lot to be said for just staying out of relationships for a while to give you a chance for the memory foam imprints to fade, before you go exploring new relationships.

The legislature just meets every two years, but when they meet they always make a lot of changes to the Texas Family Code. This time most of the changes were minor, or about cleaning up language, or don't really deal with the kinds of family law that I practice, Civilized Divorce. There was, however, one change that can affect my clients. For divorces filed on or after September 1, 2009, the parties may agree not to name either parent as the parent who has the right to determine the primary legal residence of the child, provided that the parents do agree that the residence of the child shall be restricted to a specific geographic area, such as Collin and contiguous counties.

Many parents would be negotiating the terms of divorce, and neither party wanted the other to "win" on the right to determine the legal residence of the child, even though the parents were still pretty agreeable on the terms of possession for the children. But mediators would have to keep sending them back in to reach an agreement, because the law previously required that one party be named as the "primary" (the parent with the right to determine the primary legal residence of the child).

So, now, if this is the only thing keeping parties from settling, they can agree that neither parent has the right to determine the primary legal residence of the child.

Now some folks will see this as the key to also having no child support. Well, the parties can agree that there will be no child support, but that's almost never what a judge would do if the case came down to a trial. There has been a LOT of litigation about which parent is responsible for what expenses of the child, whether the other parent has an obligation to contribute, and whether the person receiving child support is required to give an accounting of how child support money was spent.

The courts found long ago that the way to stop all the squabbling about expenses for the children is to make one parent responsible for most of the expenses of the child (school supplies, clothing, etc.) and for the other parent to pay child support. The amount of child support is based on the income of the person paying support. And the person receiving support does not have to account for the money. And the obligation to pay for school supplies and clothing has nothing to do with who has the right to determine the legal residence of the child, or even how many nights a year the child spends at a particular parent's house. So, while the parties can agree that no child support is paid, if a judge has to decide, he or she will choose the option that makes it less likely that the same folks will be back in court in a few months arguing over child support or the expenses of the child: one person will be required to pay child support.

Labels: child support, primary conservator, primary parent

One of the questions I get most often (especially from dads) is: "We've agreed on Joint Custody. That means I don't have to pay child support, right?"

Well, first, the question is wrong. "Custody" is a word that doesn't appear in the Texas Family Code, and really shouldn't be used in discussions about divorce. When one says "custody", he's usually talking about two different concepts: conservatorship and possession.

Conservatorship means the rights and responsibilities of each parent toward the child, such as the right to make educational decisions for the child, and the obligation to pay for health insurance for the child. The obligation to pay for the child's day care, after school care, school supplies, clothing, and karate lessons. The obligation to pay child support.

Possession refers to when each parent has the right to have the child with him or her.

Under a 50/50 possession schedule, most of the expenses of the child are not materially different from under a standard possession schedule. Paying for half the child's groceries isn't nearly as significant as the obligation to pay for school supplies, clothing, and so on.

Lawyers are trained to see how things can go wrong, and to try to limit those opportunities, or at least to provide for what can be done to remedy them. You don't need a lawyer to tell you to share the expenses of the child. But a lawyer will tell you that there has been a great deal of litigation (and attorney's fees) over who is responsible for what expenses of the child if the parents stop agreeing. After decades of litigation, the legislature set up the Texas Family Code to provide that one parent is responsible for the expenses of the child, and the other parent is responsible for paying child support. It just saves so much wrangling in the courtroom. You don't argue about whether $50 is too much to pay for jeans, or that the other parent bought a $40 shirt for the child. One parent pays child support per the guidelines, and the other parent buys whatever she/he believes is necessary (and that she/he can afford) for the child.

Note that the costs for providing for the child's after-school care, clothing, school supplies, extracurricular activities and such have little to do with whether the child spends 2 nights, 3.5 nights, or 5 nights a week with a particular parent. That's why a 50/50 possession schedule has nothing, directly, to do with whether child support will be paid.

Now, the parents can agree to darned near anything they want on conservatorship, possession, and child support. But a good lawyer will likely try to talk them out of an unusual arrangement, because the lawyer sees how many ways this can go wrong, and doesn't want to be accused of negligence when things fall apart and someone doesn't have a legal remedy. And, if you don't reach an agreement and you have a trial, the judge WILL order that only one parent will have the right to determine the legal residence of the child, and the other parent WILL have to pay guideline child support, and will have possession of the child according to the standard possession schedule.