Myths and Misconceptions about Divorce and Child Custody
You’re smart and practical, so you’re thoroughly researching your questions about family law matters. But with so much misinformation online, you may encounter certain phrases or concepts that don’t mean what they seem to mean. Often, the popular definition of family law terms is misaligned with what the law actually provides — and that varies by state, too.
In the age of TikTok, content creators eagerly make videos to answer your burning questions about divorce, adultery, domestic abuse, and other legal issues. Even if they’re not offering legal advice (which they cannot), they may be misusing terms with their limited understanding. Let’s review some common myths and misconceptions of family law terms and phrases.
What “Child custody” means under Texas family law
We often hear variations of this question: How can I get custody of my kids? People often call this “primary custody” or ask how they can be the “custodial parent.” They also wonder if and how their ex-spouse can lose custody.
Texas family law uses the term “conservatorship” for what people call “custody.” Biological parents typically retain their conservatorship unless it’s legally revoked or signed away. In a divorce, ex-spouses may have “Joint Managing Conservatorship” (JMC), meaning they can both make decisions about their child. This is true even if the child primarily lives with one parent. The parent who gains the right to choose their child’s primary residence is the joint managing conservator with that right, but is commonly referred to as the primary conservator or the parent with primary custody.
Sometimes, one parent will have Sole Managing Conservatorship (SMC), meaning they make decisions while the other parent may have possessory conservatorship (PC). An SMC also occurs when one ex loses their parental rights. This isn’t common in Texas family law: the courts generally want to keep both parents in the kid’s life unless there is a pressing reason not to — such as a history of violence as defined under Texas Family Code Sec. 71.004.
Here’s a breakdown of how Texas family courts may arrange child custody, i.e., conservatorship:
Managing conservatorships are most common and come in two types:
- JMC: Joint Managing Conservatorship
- SMC: Sole Managing Conservatorship
At least one parent must be named a managing conservator, whether that’s a JMC or SMC, per Texas Family Code Sec. 153.005.
In a JMC, one spouse may be the primary conservator. That’s a moot point in a SMC as only one parent has conservatorship.
Possessory conservatorship may be appointed once the managing conservators are decided. It’s also possible to have both parents named JMC and a third person relative or caretaker be appointed as a possessory conservator. This is not common and may occur in grandparent rights cases or CPS situations.
Myth: Moms always get custody
This pervasive myth is a double-edged sword: many moms assume they’ll get custody, and it’s a common talking point among men’s rights activists. However, family court does not rely on gender when determining where the child will live and who has (or doesn’t have) decision-making rights. As we discuss in this blog “How Do Courts Decide Child Custody?”, many factors come into play: emotional safety, financial stability, geographic location, etc.
The courts’ top priority is the child’s well-being. Thus, they’re reluctant to revoke conservatorship from parents who show they’re fit to provide for their kids. That said, moms shouldn’t assume they don’t need to prepare for court hearings. Preparation is critical when dealing with any family law matter:
Gather records of your caregiving history: doctor’s visits, preventative care, nutrition plans, educational investments, etc.
Assemble a clear picture of your role in your kid’s life: taking them to school or extracurriculars, helping them with homework, teaching them life skills, and so on.
You can find more information in our guide, “Your Child Custody Questions Answered.”
Myth: The higher-earning parent (or the employed one) will get custody
Many of our clients are stay-at-home moms who fear they’ll lose custody because they don’t work. Others have lower-paying jobs and assume the courts will award custody to the parent who earns more.
As discussed above, the family courts are reluctant to terminate parental rights unless there is violence or abuse. They consider each parent’s ability to financially provide for the child, but that doesn’t mean they’ll automatically decide custody based on each parent’s earnings.
First, divorce agreements may include spousal maintenance and child support to help stay-at-home moms adjust to a single-earner household. That money would help them provide for the kids as well. When preparing your divorce case, have a clear idea of how much money you need to provide for yourself and your children.
Second, financial stability is only one factor the family courts consider. They may name both parents managing conservators but award primary conservatorship to the lower-earning parent if that’s what they determine is best for the child based on the whole picture.
Learn more in our blog “Divorcing as a SAHM Part II: Custody and Child Support.”
What ”Visitation” means under Texas family law
In popular lingo, “visitation” refers to one parent who has limited decision-making rights and doesn’t live with their child. That’s fairly aligned with what Texas family law provides for. It’s covered under possessory conservatorship (PC) as described under “Custody” above.
Typically, one ex-spouse has an SMC (Sole Managing Conservatorship) and the other parent can see their child on a pre-set schedule. Sometimes, though, a JMC (Joint Managing Conservator) may have limited or supervised time with their kid, even if they retain parental rights. The two are not mutually exclusive.
In either case, the court determines this schedule based on what will minimize disruption and ensure a consistent, supportive presence in the child’s life.
Myth: Fathers will always (and only) get visitation rights
As we mentioned, the Texas family court strives to keep both parents in a child’s life unless there are significant reasons not to. If a parent has shown abusive or reckless behavior or neglected their child, they are less likely to retain managing conservatorship — regardless of their gender.
However, it’s possible to be a conservator, i.e. to keep parental rights, and still be limited to supervised visitation. Many custody arrangements don’t specify visitation at all. It truly does vary by the situation. The court’s goal is to do what’s best for the child, and in their view, that rarely means restricting a good father to “visitation only.”
What “50–50 Division of Assets” means under Texas divorce law
You’ve seen it in plenty of movies and TV shows: divorcing spouses arguing bitterly over who gets what, while well-meaning friends advise them they’re entitled to half of everything.
Most people assume that exes split everything equally. That means 50–50, right?
Not exactly. There’s a difference between “equal” and “equitable,” and Texas family law focuses on the latter. The goal is not to divide everything by two but to ensure the marital assets are distributed fairly and justly.
Imagine you have two buckets: one with precious gems, the other with cash. The buckets may weigh the same and hold the same number of items, but one may be worth significantly more. Rather than saying Spouse A keeps one bucket and Spouse B keeps the other, the courts will determine the relative value of their contents and divide them accordingly.
Let’s say one spouse cannot work or will have primary conservatorship (see above). The court may decide they need relatively more of the cash so they can afford living expenses.
Myth: Your ex-spouse can take half of your money
It’s a clichéd plot point in many movies: someone marries a wealthy person so they can eventually divorce them and get half their assets.
But in real life, not everything is up for grabs, and the courts aren’t as blasé about dividing marital assets as pop culture would suggest. Divorce settlements can and should acknowledge each spouse’s earning power, financial contributions, and what they had before the marriage. The courts also consider the length of a marriage and other factors. Prenuptial agreements help prevent unscrupulous exes from manipulating a divorce for financial gain.
Moreover, Texas is a community property state, so equitable division of assets works differently here. Both spouses may be entitled to property and debts acquired during the marriage (with the exceptions of certain inheritances and gifts). But anything they had before the marriage remains their own.
All that said, it remains vital to thoroughly document your assets and come to your settlement hearing fully prepared. Whether you’re dealing with a contested divorce or seeking amicable separation of the assets, know what you have and what you’re entitled to keep.
What “alimony” means in Texas divorce law
Alimony is widely misunderstood. Yes, it is money one ex-spouse pays to their former partner, usually because that partner was financially dependent on them. However, it is not guaranteed and the courts cannot force an ex-husband to pay alimony.
What they can force is spousal maintenance. This court-ordered financial support may be available in extenuating circumstances. To receive spousal maintenance, the person must have experienced one of the following:
- Domestic violence within 2 years of filing for divorce or during the process
- Disability that limits their ability to work OR their child’s disability that greatly increases caregiving costs
- Significant financial dependence due to being married at least 10 years
Those situations often don’t apply when clients ask “How can I get alimony in a Texas divorce?” Alimony is possible, but it’s not up to the courts.
In Texas, alimony is also called contractual alimony because it stems from a contractual agreement between ex-spouses. One agrees to pay the other a specific amount of money for a certain timeline — ideally enough for the formerly dependent spouse to establish their single household. Because it’s settled out of court, though, the courts cannot enforce the payments unless the recipient sues their ex.
In sum:
Alimony: Payments arranged via a mutual agreement that was negotiated between ex-spouses out of court. Enforced by contract law and not modifiable.
Spousal maintenance: Payments ordered by a court for one person to pay their former spouse, due to disability, abuse, or long marriage. Enforced by court order and can be modified.
Learn more about the differences between alimony and spousal maintenance.
Myth: A cheating spouse must pay alimony — or is disqualified from getting alimony if they cheat
If we’re talking about spousal maintenance, adultery has little bearing on whether or not it’s awarded. The courts order maintenance payments to ensure the ex-spouse’s safety and financial viability.
Contractual alimony, though, is established through ex-spouses’ mutual agreement. Adultery can certainly throw a wrench into negotiations. If one spouse cheated and then seeks alimony, their ex isn’t exactly motivated to make it happen. On the flip side, the cheated-on spouse could demand alimony as their ex’s amends for breaking their vow. In short, each party’s legal team could play the adultery card against the other.
As we mentioned, alimony can be tough to enforce. So even if a cheating ex initially agrees (out of guilt or coercion, perhaps), they can stop payments without repercussions.
In other words, be cautious when using the adultery card in negotiations. Stick to the facts: why alimony is needed to help both ex-spouses establish separate lives.
A collaborative law divorce or divorce mediation can allow separating spouses to establish an alimony amount and payment schedule. This is good news for those who want both alimony and divorce without court.
Need help navigating your family law situation? At Alexandra Geczi Family Law, we believe that knowledge is power, and we seek to empower you throughout the process. Whether you’re seeking a DIY or amicable divorce or hoping for a fair divorce settlement, we’re here to help you cut through misinformation and get prepared to receive what you deserve. Schedule a discovery call and let’s see how we can assist you.