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FAQ - Frequently Asked Questions
John C. Mallios has been handling divorce cases for twenty-three years. Through this depth of experience he has developed a set of Frequently Asked Questions. These Questions and Answers may make the process easier for the client and future client. Consultation with John Mallios and Associates, PC is only a phone call away.
How long does the Divorce process take?
In an uncontested case sixty days from the filing date of the original Petition for Divorce is the soonest that a divorce may be ruled upon by the Court. Contested cases can take over a year. It can be difficult to marshal the evidence and then get scheduled on the Court's docket or calendar. In some counties the docket is less crowded and cases are heard more quickly.
Is there a waiting period for remarriage after a divorce is final?
The waiting period is thirty days if no appeal is filed. An appeal may complicate the matter but in an uncontested case there should not be an appeal. While the marriage that takes place during this sixty day waiting period may not be invalid in certain circumstances it may be voidable. It is in the parties best interest to wait sixty days from the date of the Decree of Divorce.
What is Joint Managing Conservatorship?
This custodial arrangement is favored by the Court. Both parents have the same rights with regard to the children. The parent who has possession of the children, known as the Managing Conservator, will establish the residency of the children and will receive a child support in an amount which is specified by statute.
Statutorily there exists a 'rebuttable presumption' that Joint Managing Conservatorship is in the child(ren)s best interest. This means the court assumes this is best until it is proven that Joint Managing Conservatorship is unworkable for the parties and not in the best interest of the child/children.
What is sole managing conservatorship?
When the the Court is convinced that Joint Managing Conservatorship will not work sole managing conservatorship is chosen. This is a mandatory choice if there has been recent domestic violence in a case.
Are my communications with my counselor/psychologist/psychiatrist privileged in a divorce?
While generally these communications are privileged if the issue of conservatorship is placed before the Court this privilege is waived. Communications with counselors are not privileged and confidential if the information is relevant to matters which have the potential to be relevant to the parent-child relationship.
What is standardized Child Support in Texas?
The amount of child support is set by statute. The stated percentage amount is applied to a net income of $6,000.00 the amount of Child Support is discretionary with the Court and based on the proven needs of the child. The standard amount for child support in the State of Texas, up to $6,000.00 of net income is:
One child - 20% of the net income of the payor;
Two children - 25% of the net income of the payor;
Three children - 30% of the net income of the payor;
Four children - 35% of the net income of the payor.
These amounts also vary based upon the number of children the payor may be supporting other than those children of the divorce.
My child will be sixteen soon and will need a car, insurance and more money than was necessary when support was set. Can I request an increase in support?
A Motion for Modification of Support can be heard. Some of the factors the Court will consider are:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
(5) the amount of the obligee's net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
(6) child care expenses incurred by either party in order to maintain gainful employment;
(7) whether either party has the managing conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical expenses;
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
My spouse has withheld visitation from me. Do I have to pay child support if I cannot see my child?
There is a specific statute which indicates that visitation and support are two different matters. Child support cannot be conditioned on possession or access. You must pay support even if you do not see your child. If visitation is being withheld a Motion for Contempt is the proper course of conduct. A court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child.
My spouse is self employed. The net income shown on the income tax statement is very different from our real net income. Will I be limited to the income as shown on our income tax return?
Courts, divorce attorneys and parties to a divorce are all aware that an income shown an income tax return is very different from true 'net available resources' on which child support is calculated. One very clear example is depreciation expense shown on income tax return are often expenses that have already been incurred. John Mallios has extensive experience in working with Certified Public Accountants and business evaluation experts in determining the true net available resources on which child support should be calculated.
Statutorily the Court has the discretion to disregard income tax return expenses:
In its discretion, the court may exclude from self-employment income amounts allowable under federal income tax law as depreciation, tax credits, or any other business expenses shown by the evidence to be inappropriate in making the determination of income available for the purpose of calculating child support.
The Court is instructed by statute to determine the net resources of a spouse for child support liability as follows:
(b) Resources include:
(1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including non-cash items such as depreciation); and
(5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
(c) Resources do not include:
(1) return of principal or capital;
(2) accounts receivable; or
(3) benefits paid in accordance with aid for families with dependent children.
(d) The court shall deduct the following items from resources to determine the net resources available for child support:
(1) social security taxes;
(2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
(3) state income tax;
(4) union dues; and
(5) expenses for health insurance coverage for the obligor's child.
My spouse earned a very good income last year and is unemployed this year. How will the court determine the income for support.
The Texas Family Code Sec. 154.066, INTENTIONAL UNEMPLOYMENT OR UNDEREMPLOYMENT, specifically addresses this issue. If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.
My spouse owns a ranch that has never produced income. In essence this million dollar asset is just a hobby. Will it be included in my spouses net available resources in determining child support?
Unfortunately, in high asset value divorces this can be a common scenario. The Texas Legislature has addressed this issue with Section 154.067, entitled: DEEMED INCOME. In essence the Legislature has given the Court the discretionary power to 'deem income' from certain properties. Often expert witnesses are required to testify regarding the non-income producing property or hobby. The statute states:
(a) When appropriate, in order to determine the net resources available for child support, the court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income. The court shall also consider whether certain property that is not producing income can be liquidated without an unreasonable financial sacrifice because of cyclical or other market conditions. If there is no effective market for the property, the carrying costs of such an investment, including property taxes and note payments, shall be offset against the income attributed to the property.
(b) The court may assign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred or on which earnings have intentionally been reduced.
What is reasonable visitation?
The State of Texas has adopted "Standard Visitation." "Standard Visitation" is divided into two categories: visitation for parents residing less than one hundred miles from each other and visitation for parents residing over one hundred miles from each other.
Can a child choose the parent with whom they wish to reside?
A child of twelve or older may by statute sign an affidavit indicating the parent with whom the child would prefer to live. While the Court will always be guided by what is in the best interest of the child and this choice is not binding upon the Court it will be considered to be an important piece of evidence the Court will consider when making a decision regarding conservatorhsip.
A party to the divorce (either parent) may by statute request that the Court interview a child 10 years of age or older. While neither parent will be in the room it is always best to have this interview recorded by a court reporter.
Can a grandparent gain custody of a grandchild?
There is a rebuttable presumption that a parent is the best person to care for a child. This presumption can be rebutted. A grandparent can be considered as a conservator of a minor child when the parent is deemed to be unfit. See John C. Mallios and Associates, PC Grandparental Rights in Texas.
Tax Exemption belongs to which parent?
Generally the managing conservator is awarded the tax exemption. However, the parties may agree to award the tax exemption to the possessory conservator.
Can I tape my spouse's telephone conversations?
While the law varies from state to state in Texas a party may tape the telephone conversations of anyone with whom they are party to the conversation. While the conversation between two other parties may NOT be taped a conversation of a party with another party may be taped. For example one spouse may tape a conversation with another spouse. One spouse may NOT tape the conversation of their spouse and another party.
What is Separate Property?
Separate property is property acquired before the marriage, received as a gift or inheritance during the marriage or property characterized by a prenuptial agreement as separate property. However, it is important to note that with tracing techniques so property may prove to have changed its character from separate to community. Also some property which is characterized as separate may in fact be community. Each individual asset must be closely examined to determine whether it should be classified as separate property or community property. Often certified public accountants are necessary to identify the true nature of businesses and assets.
What happens to Separate Property?
While separate property is not subject to the divisionary powers of the Court in a divorce it may be used as a source or a calculation to be made for the setting of child support.
What is Community Property?
Community Property belongs to the marital estate and is subject to division by the Court. Typically community property is that property acquired after a marriage.
What do I bring with me when I first visit your office when filing an?
1. Uncontested Divorce:
Names, addresses, birthdates, drivers license and SS numbers of those involved
2. Division of Property Information:
401K, retirement, and credit card account information.
3. Property Awards:
Legal descriptions of property.
4. Hourly Rate Clients:
Method of payment information, if using a credit card, the billing zipcode will be required.
May a maiden name be restored?
The Court may not refuse to restore a maiden name. A maiden name can be restored in the Decree of Divorce.
Is my divorce file a 'public record' that anyone may view?
Basically, yes, your divorce is a public record. If your divorce is filed in a county with a population of 3.4 million or more except as otherwise provided by law, all pleadings and other documents filed with the court in a suit for dissolution of a marriage are confidential, are excepted from required public disclosure under Chapter 552, Government Code, and may not be released to a person who is not a party to the suit until after the date of service of citation or the 31st day after the date of filing the suit, whichever date is sooner. You may, however, petition the Court to seal your divorce record.
Memberships and Licenses
American Bar Association
State Bar of Texas
Texas Eastern District Court
Texas Northern District Court
Texas Southern District Court
Texas Western District Court
John Mallios has practiced law for 33+ years helping people in need of assistance due to injury, divorce, or criminal charges.
Mr. Mallios' persistence has resulted in large financial awards for those injured by accident, divorce, or otherwise.
John C. Mallios and Associates, P.C. maintains offices in Waxahachie, Texas. We serve all areas of North and Central Texas
including: Collin County, Dallas County, Delta County, Denton County, Ellis County, Hunt County, Johnson County, Kaufman County,
Parker County Rockwall County, Tarrant County, Wise County (DFW) Dallas Fort Worth Metroplex, Ables Springs, Addison, Aledo,
Allen, Alma, Alvarado, Alvord, Anna, Annetta, Annetta North, Annetta South, Antioch, Argyle, Arlington, Aubrey,
Aurora, Avalon, Azle, Balch Springs, Bardwell, Bartonville, Bedford, Ben Franklin, Benbrook, Blue Mound, Blue Ridge,
Bolivar, Boyd, Briar, Briaroaks, Bridgeport, Brock, Burleson, Caddo Mills, Campbell, Carrollton, Cash, Cedar Hill,
Celeste, Celina, Charleston, Chico, Cleburne, Cockrell Hill, Colleyville, Combine, Commerce, Cool, Cooper, Copeville,
Coppell, Copper Canyon, Corinth, Corral City, Cottonwood, Crandall, Cresson, Cross Roads, Cross Timber, Crowley, Dallas,
Dalworthington Gardens, Decatur, Dennis, Denton, DeSoto, DISH, Double Oak, Duncanville, Eagle Mountain, Edgecliff Village,
Elizabethtown, Elmo, Enloe, Ennis, Euless, Everman, Fairview, Farmers Branch, Farmersville, Fate, Ferris, Flower Mound,
Floyd, Forest Hill, Forney, Forreston, Fort Worth, Frisco, Garland, Garner, Garrett, Glenn Heights, Godley,
Grand Prairie, Grandview, Grapevine, Grays Prairie, Greenville, Greenwood, Gun Barrel City, Hackberry, Haltom City,
Haslet, Hawk Cove, Heath, Hebron, Hickory Creek, Highland Park, Highland Village, Hudson Oaks, Hurst, Hutchins, Ike,
Irving, Italy, Josephine, Joshua, Jot Em Down, Justin, Kaufman, Keene, Keller, Kemp, Kennedale, Kensing, Klondike,
Krugerville, Krum, Lake Bridgeport, Lake Creek, Lake Dallas, Lake Worth, Lakeside, Lakewood Village, Lancaster, Lantana,
Lavon, Lewisville, Lillian, Lincoln Park, Little Elm, Lone Oak, Lowry Crossing, Lucas, Mabank, Mansfield, Maypearl,
McKinney, McLendon-Chisholm, Melissa, Merit, Mesquite, Midlothian, Milford, Millsap, Mineral Wells, Mobile City, Murphy,
Nevada, New Fairview, New Hope, Newark, Neylandville, North Richland Hills, Northlake, Oak Grove, Oak Leaf, Oak Point,
Oak Ridge, Ovilla, Palmer, Paloma Creek, Pantego, Paradise, Parker, Peaster, Pecan Acres, Pecan Gap, Pecan Hill,
Pelican Bay, Pilot Point, Plano, Ponder, Poolville, Post Oak Bend City, Prattville, Princeton, Prosper, Providence Village,
Quinlan, Rattan, Red Oak, Rendon, Reno, Rhome, Richardson, Richland Hills, Rio Vista, River Oaks, Roanoke, Rockett,
Rockwall, Rosser, Rowlett, Royse City, Runaway Bay, Sachse, Saginaw, Saint Paul, Sanctuary, Sand Branch, Sanger,
Sansom Park, Savannah, Scurry, Seagoville, Shady Shores, Slidell, Southlake, Springtown, Sunnyvale, Talty, Telico,
Terrell, The Colony, Trophy Club, Union Valley, University Park, Van Alstyne, Venus, Watauga, Waxahachie, Weatherford,
West Tawakoni, Westlake, Westminster, Weston, Westover Hills, Westworth Village, White Settlement, Whitt, Willow Park,
Wilmer, Wolfe City, Wylie, Yowell
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