1. How long do you have to live in the State of Texas to file for divorce?
The Texas Family Code requires you to reside in the State of Texas for six months prior to filing and to be a resident of the county you are filing in for at least 90 days.
2. Should I see a lawyer if I am not certain that I want a divorce?
We recommend that you obtain information about the divorce process even if you are not certain as to whether you will be divorcing. Facing difficult times armed with the knowledge of the divorce process and the choices available to you can be comforting and reassuring.
Furthermore, litigation is often complex and harrowing. Guidance before you initiate legal proceedings should help you establish some goals for your outcome and a plan for how you can best achieve those goals.
3. How long does it take to get a divorce?
According to the Texas Family Code, a divorce must be on file with the court for a minimum of 60 days before the divorce can be finalized. The actual duration of your divorce is determined by many additional factors, such as the court’s calendar, attorney’s calendars, and your personal calendar. A divorce cannot be finalized until the parties have reached an agreement on all issues or the parties have had a final trial of the issues.
If the spouses have reached an agreement on all of the relevant issues, a divorce may be obtained 61 days after filing the divorce petition. If an agreement is not reached and the case must be tried, the length of time is primarily dependent on the court's docket.
4. Where can I file for divorce?
You can file for divorce in a county where either you or your spouse have lived for at least 90 days, as long as that same person has lived in Texas for at least six months.
5. If my spouse and I have agreed to all the relevant terms of our settlement, what is the general procedure for obtaining and finalizing the divorce?
It is common for spouses to believe that they have an agreement, when they actually have not addressed all the necessary terms, such as child custody or support, or property division. However, assuming all required terms are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. The attorney for the Petitioner (the filing spouse) files the divorce petition. The other spouse can be brought into the lawsuit by executing a Waiver of Service, which notifies the Court that the spouse signing the waiver knows about the divorce and agrees to let the divorce go forward so long as they have signed off on the final decree of divorce. The Petitioner's attorney then drafts an Agreed Final Decree of Divorce and any other necessary documents that are reviewed and signed by the other spouse. The other spouse is free to hire or consult with an attorney of his or her own. After the necessary papers are signed by the parties and attorneys, the Petitioner and his/her attorney then go to court for a hearing to have the court enter the Decree and other documents.
If the other spouse will not execute a waiver of service, the case becomes contested. The other spouse can be brought into the lawsuit by service of citation by a process server.
6. Do I have to show fault to get a divorce?
Texas is a no-fault divorce state. "No-fault" means that it is unnecessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation. However, many fault issues (adultery, cruelty, etc.) are frequently relevant factors in divorce cases because they can have an impact on how the community property is divided, or how custody is decided.
7. What is an uncontested or friendly divorce?
An uncontested divorce is one in which both parties have amicably agreed on every detail of their divorce, the best interests of their children and the complete division of their community estate. The primary task for the attorneys in the case is to file the divorce and draft appropriate documents, including the Final Decree, to memorialize the terms on which the parties have agreed. All parties and children will benefit from maintaining a cordial, respectful working relationship between themselves. A friendly divorce will minimize the hostility and damage to all family members, but requires that the parties reach agreement on all details related to the divorce including child support, possession, access and residence of children and division of accounts and property included in the community estate.
Child Support FAQ's
1. How is child support calculated?
In most cases, child support is calculated using a formula in the Texas Family Code. The payor's monthly "net resources" (a term defined by statute) is multiplied by a percentage which is determined by the number of children at issue (e.g., the percentage for one child would be 20%. This increases by 5% for each additional child – maximum 35%). The payor is entitled to a reduction if he or she is also responsible for the support of a child in another household.
2. Who carries medical insurance for children and how do out-of-pocket medical expenses of children get paid?
The Texas Family Code requires that the court include medical support in an order regarding child support. The parent paying child support (obligor) will normally be required to carry health insurance. However, if the parent who receives child support (obligee) has health insurance available (and the obligor does not) the court may order the obligee to provide health insurance and order the obligor to pay additional child support to cover the actual cost of health insurance. Additionally, the court shall allocate between the parties, according to their circumstances, the reasonable and necessary health care expenses of the child that are not reimbursed by health insurance.
3. Can my child's other parent avoid paying child support by filing for bankruptcy?
Child support obligations are not dischargeable in bankruptcy.
Custody and Possession FAQ's
1. How do the Courts determine custody?
The best interest of the child is always the primary consideration of the court in determining the issues of conservatorship and possession of and access of the child.
2. Isn't it true that the Courts favor the female spouse having custody of the children?
By law, courts must consider the qualifications of a spouse or party without regard to their marital status or to the sex of the party or the child in determining whether to appoint either parent or party as sole managing conservator or appoint the parties joint managing conservators. Typically, the primary goal of any court is to maintain the status quo if the evidence indicates that the current scheme of access to the children is working well for the children.
3. What is joint conservatorship?
First, to address an erroneous definition, joint conservatorship does not mean (necessarily) that one parent has the child half of the time and the other has the child the remainder of the time. Although a joint managing conservatorship can consist of a an equal split in possession of the child, it more often consists of one parent having the child the majority of the time and the other parent having visitation/possessory rights that are much less than half. Joint managing conservators means that both conservators (parents) share in the major decision making rights, privileges, duties and powers held by the parent pertaining to the child such as the right to establish the primary residence of the child; the right to consent to medical, dental, and surgical treatment; the right to receive and give receipt for periodic payments of support for the child; the right to represent the child in legal actions; the right to consent to marriage or enlistment in the armed forces; and the right to make educational decisions, to name a few.
4. Where will the Courts start with regards to conservatorship?
Texas has enacted a presumption that parents should be joint managing conservators. Of course, this presumption is rebuttable. The presumption is based on the notion that it is usually in the child's best interest to have both parents play a major role in all aspects of the child's life.
5. Under what circumstances can the joint managing conservatorship presumption be rebutted? How can I avoid joint managing conservatorship and be named sole managing conservator?
The presumption can be rebutted by showing that a joint managing conservatorship arrangement is either not workable between the parents (i.e., you cannot make decisions together regarding the child) or a showing that joint conservatorship would not be in the child's best interest.
6. At what age can a child sign an affidavit choosing a managing conservator?
Recent changes in Texas Family Law eliminated the option for a child to sign a document, informing the court of his/her choice of which parent he/she wants to live with primarily. The current law provides that upon the proper request by a parent or attorney for a parent, the Court is obligated to interview a child who is 12 years of age or older to determine the child’s wishes as to conservatorship and that the Court must consider the child’s desires in conjunction with other evidence relating to what is in the child's best interest.
7. Can a child testify at a custody trial?
In a nonjury trial, the judge must, if requested, interview a child who is 12 years of age or older in chambers. Additionally, the judge has discretionary authority to interview a child under 12 years of age.
8. How can I get the custody and/or visitation provisions of my divorce decree changed?
The only way to formally change current custody and/or visitation provisions in a Court Order is to file a Petition to Modify with the Court and request that the Court review and revise the prior Orders.
9. I have specific days and times for visitation but my ex refuses to allow me to see our child on those days. What can I do?
Many levels of options are available for relief based on the specific facts of the underlying problem. Most often the remedy is to file with the Court a Motion to Enforce the provisions of the Order and/or a Motion for Contempt asking the Court to hold the disobedient party in contempt. Contempt remedies can range from having the disobedient party held in jail to merely having the Court Order extended periods of possession to the parent who has been denied access to the most extreme circumstance of the Court issuing a change in primary custody decisions.
10. May I stop child support payments if I am not allowed visitation?
No. The payment of child support is not an exchange or condition precedent to your having visitation. The proper procedure would be for you to file a Motion for Enforcement and/or Contempt.
11. I'm not receiving the child support as ordered, may I deny visitation from my ex?
No. A conservator's right to session/visitation is not conditioned on whether he/she pays child support as ordered. The proper procedure would be for you to file a Motion for Enforcement and/or Contempt.
12. I will have my child for 30 days during the summer -- must I still pay child support during that time?
Unless your divorce decree or court order specifically says otherwise, you must continue to pay child support during that 30 day period.
13. Can the Court limit where the children live?
The Texas Family Code provides that when conservatorship is established, the Court must designate the conservator who has the exclusive right to determine the primary residence of the child. Most courts believe that included in that obligation is the additional obligation to either specifically establish the geographic area in which the conservator shall maintain the child's primary residence, or specify that the conservator may designate the child's primary residence without regard to geographic location. When they apply, residence restrictions for the children are most often limited to the current county of residence and counties bordering that county, but in many cases the parties to a divorce will establish for themselves residence boundaries appropriate to their lifestyles and circumstances so as to keep both parents in reasonable proximity to the children and their activities so that both parents can remain active participants in their children’s lives.
14. If I am not married to my child's other parent, what can I do?
If you are not married to your child's other parent, you can file a suit to establish parentage. Once parentage is established, possession, child support, and visitation are set in a final order, much the same as in a divorce case. Additionally, the courts can order retroactive child support.
15. Does the Court have guidelines as to possession of children?
The Texas Family Code sets out a standard possession order which is presumed to be the minimum amount of time that you could see your children, so long as they are over the age of three. If your child is under the age of three, Texas law requires that the court render an order appropriate under the circumstances for possession of a child of less than three years of age.
Property Division FAQ's
1. How is property divided between spouses in a divorce?
The Texas Family Code requires that the court divide the community property of the spouses "in a manner that the court deems just and right." This means the court is not required to divide the property 50-50 and can consider a variety of factors in deciding what is "just and right." These factors can include fault in the divorce, disparity in earning power, disparity in amount of separate property, etc.
2. What is the difference between separate and community property?
Generally, a spouse's separate property is property that was either:
- · owned by the spouse before marriage
- · acquired by gift or inheritance, or
- · certain kinds of recoveries for personal injuries
Community property is all property other than separate property. All property owned by either spouse at the time of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.
3. Can I make my spouse leave the home while we are in the divorce process?
If you request the court to issue temporary orders as part of your divorce proceeding, the court can order that one of the spouses has exclusive use of the marital residence during the divorce proceedings. If each spouse wants the other spouse to move out, the court will have to decide which spouse moves during the pendency of the divorce.
4. Will I lose my interest in our house if I move out before the divorce is completed?
The character of your house is either separate property, community property or mixed. This characterization is set and will not change because one of the spouses moves out. However, moving out before the divorce begins could have an adverse impact if you have custody issues.
5. Can my spouse be awarded property that I had when we married or that I inherited after we married?
No. Property you had when you married or inherited after your marriage is your separate property. The court cannot divest you of your separate property. However, you will have to prove that such property is your separate property by clear and convincing evidence. If you cannot meet your burden of proof, the court may presume it is community property and could thus award some or all of it to your spouse.
6. Am I entitled to any assets that are only in my spouse's name?
Possibly. The name on the account or asset does not determine whether the property is community or separate. If assets are solely in your spouse's name, but are community assets, you can potentially be awarded a portion of those assets.
7. Can one spouse be awarded part of a retirement plan in the other spouse's name?
If a retirement plan is community property, it can be awarded in whole or in part to the spouse whose name is not on the account. The assets awarded to the other spouse can be transferred to the other spouse without tax consequences. A special document called a Qualified Domestic Relations Order would be entered at the same time as the divorce decree.