Presumptions in Divorce Cases

So you think you are going to be involved in a divorce.  Your marriage has hit a wall and it does not appear like you will be able to reconcile your differences with your spouse.  Every divorce is different. Some divorces only involve terminating the marital relationship.  Other divorces involve dividing marital assets.  Finally, some divorces involve terminating the marriage, dividing marital property and addressing parent-child issues such as custody, access and possession and child support. 

Imagine the thousands of divorces that go through a courthouse every year!  The state legislature has created certain presumptions as an aid to resolution of disputes that appear in divorce cases.  First of all, when it comes to dividing up marital property the court will first determine what property is “separate” property and what property is “community property”.  As a rule of thumb the divorce judge cannot divide up separate property owned by the parties.  This is property owned by a party before marriage and property received by a party during the marriage by gift or inheritance.  When it comes to community property there is a strong “presumption” in favor of the court dividing up the property 50/50.  This 50/50 rule governs the vast majority of divorce cases.  However, a party may seek to overcome this presumption by showing such things as fault in the break up of the marriage, a spouse’s disability, a spouse’s unequal earning capacity and the more severe impact that the divorce will have on a party.  The presumption will control unless there is strong evidence of record in favor of a disproportionate division. 

When it comes to children, there is a strong presumption in favor of the parents being named as joint managing conservators.    If a party wants to be named as the sole managing conservator then that party will need to present credible evidence in court to overcome this presumption.  Alcohol abuse, family violence, the distance one parent lives removed from the children and the lack of time spent with the children even before a case is filed can affect how the court rules on the issue of conservatorship.  But, joint managing conservatorship with both parties living in the same city/county  is the court’s first choice in its award of conservatorship.  

Even child support is subject to what are called guidelines.  In setting child support the court determines income and non taxable benefits in setting child support. It’s a math exercise.  There are cases where the court determines to set child support outside of the guidelines. In these cases the court should announce why it is not following guidelines when setting support. Child support for a child ends when that child ages out.  

Here is what I suggest if you are facing a divorce.  See an experienced divorce attorney, learn about all of the presumptions that may come up in your case and then determine whether you have sufficient proofs  to overcome those presumptions. This is always a good starting point in your case. 

Call us at 915-593-6600 or 915-256-0579.  We are here to help!  Let us take a close look at your pending case.  We can help you work your way through the difficult world of divorce, especially where children are involved.