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Frequently Asked Questions

Family Law

How much will my divorce cost?

The cost depends on whether you and your spouse can reach an agreement regarding the property division and children (if any), how long the case has to be litigated before that agreement is reached, whether temporary orders are necessary, whether a trial is necessary, whether discovery is conducted, and how reasonable your spouse and your spouse's attorney are (or aren't) throughout the process. Unfortunately, there is no real way to predict this. Sometimes, what looks like a seriously contentious divorce settles rather quickly, while others that look like all are agreed turn into a battle for everything but the kitchen sink.

Does Texas have legal separation?

Texas does not recognize legal separation. You are legally married until you get a divorce.

Does it matter which spouse filed for divorce first?

In the long run, not really; but there is a slight procedural advantage to filing first. The one who files first gets to present their case first, but the judge/jury will still hear all the evidence from both sides before making a determination.

Do I have to prove fault of the other spouse to get a divorce?

No, Texas is a no-fault divorce state, but if there is a fault ground for divorce, it might make a difference in how the court deals with the issues in the divorce.

How long do I have to be separated before I file for divorce?

There is no specific time frame.

If I don’t want the divorce, can my spouse still divorce me?

Yes, even when one spouse vehemently is against getting divorced, the court will still grant the divorce—that is what "no fault" divorce essentially means.

Are there residency requirements to get a divorce?

One of the spouses has to have been a resident of Texas for a continuous six-month period, and a resident of the county where the divorce is filed for at least 90 days.

I just moved to Smith County, do I have to wait to file for divorce?

If you want to get a divorce in Smith County, then yes (see residency question above), but you may still be able to obtain a divorce where you previously resided, depending on the circumstances.

If my spouse and I agree, how long does a divorce take?

Texas law requires that a couple wait a minimum of sixty days between the date the petition for divorce is filed and the date the divorce is granted.

I don’t work, and my spouse left me, how do I make it until the divorce is final?

After filing for divorce, a hearing for temporary orders can be held, and the Court will determine who and how the bills are paid (basically keeping the status quo) until the divorce is final.

What is community property?

Community property is all property other than separate property acquired by either spouse during marriage. This gets very technical and if there are issues regarding the characterization of property during your divorce, you need to seek legal counsel.

What is separate property?

A spouse's separate property consists of:

  1. The property owned or claimed by the spouse before marriage;
  2. The property acquired by the spouse during marriage by gift, devise, or descent; and
  3. The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Although it sounds straight forward; issues arise more frequently and those issues are often more complicated that most people anticipate.

Does Texas have alimony?

Short answer: No, but there are very specific instances where an ex-spouse might be ordered to support their ex after the divorce becomes final. If you believe this to be an issue, you need to seek advice of counsel.

Will my wife automatically get custody of the children?

No, it is not automatic that the mom gets the children. It is presumed that joint managing conservatorship (joint custody) is in the best interest of the child. When people refer to "getting custody" what they are probably referring to is being the one who is awarded the right to determine the child’s primary residence. The court is going to look at what is in the best interest of the child, and that entails a number of factors, such as who has been the primary caregiver in the past, who can provide the most stable environment, etc. Regardless of who determines primary residence, the court will enter a visitation schedule, and BOTH parents will be able to have time with their children and stay involved in their children’s lives.

What is a geographical restriction?

A geographical restriction restricts where you can live and has become the norm in Texas. It is usually restricts your residence to the county (and sometimes surrounding counties) in which the divorce/SAPCR was granted. The reason for the restriction is to promote a relationship between your child(ren) and both parents. There is usually a caveat that if the other parent moves out of the restricted area, then the restriction is lifted.

Can a court require a parent to pay for college expenses?

Not in a typical situation, but parties can agree to provide for their children’s college tuition and expenses and that agreement can be included in the divorce decree.

Am I entitled to a portion of my spouse’s retirement?

All income earned during a marriage is community property and subject to division at the dissolution of the marriage. If your spouse contributed to a retirement account during the marriage, the amount contributed during the marriage is community property.

What if my ex-spouse refuses to pay the court-ordered child support?

If the parent that is ordered to pay is refusing to pay the ordered child support, there are a number of ways to collect, including requesting that the court issue a withholding order, so that the money is automatically taken out of the parent’s check. Sometimes in cases of frequent job changes or self-employment, wage-withholding doesn’t happen as it should. A motion for enforcement can be filed against the nonpaying parent, and that parent could be held in contempt for violating a court order. If this is a problem for you, seek legal counsel or talk to the Attorney General’s office in your area.

My ex-spouse makes a lot more money than he did when we divorced. Can I get the amount of child support increased?

To modify the amount of child support (either an increase or decrease in the amount ordered), one of two things must be proven in court: either (a) you show that the circumstances of the child or a person affected by the order have materially and substantially changed since the date the order was signed; or (b) it has been three years since the order was signed and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. Most cases will fall under the three-year category, so the question of whether child support can be modified becomes primarily a question of math.

What is common law marriage?

There are two ways people can form a common law marriage in Texas:

  • They sign a Declaration of Marriage under section 2.402 of the Family Code (this is fairly rare); or
  • The man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and represent to others that they are married. If you are married pursuant to common law, you are just as married as someone with a marriage license. That being said, if you are common law married and no longer wish to be married, you will need a divorce. If a divorce from a common law marriage is not brought within two years after the parties separate, then there is a rebuttable presumption that there was no common law marriage. Note that the presumption is rebuttable, which effectively creates an informal but not an absolute statute of limitations for common law marriages. THERE IS NO SUCH THING AS A COMMON LAW DIVORCE!

If you are in this situation or have a question about whether you are or are not common law married, you need to seek the advice of counsel.

How is property divided in Texas?

The starting point is that the court presumes that all the property of the marriage is community property, and if you have separate property you have to prove it by tracing it with "clear and convincing evidence." The court divides the property in a "just and right manner." What does this mean? In most cases, it means a 50/50 split. In other cases, factors such as unequal earning power and fault in the marital relationship can affect the division of property.

Do grandparents have rights in Texas?

Although the state of the law in this area is somewhat in flux as the result of a U.S. Supreme Court decision striking down another state's grandparent custody law, under the Texas Family Code, a grandparent can get access (limited visitation) with a grandchild in certain circumstances. Grandparent custody of a child is also allowed under the Texas Family Code if the parents consent or if the child's present living environment presents a serious question concerning the child's physical health or welfare. If this is an issue for you, you need to seek the advice of counsel to determine your rights.

What is the process for a divorce?

The following is a brief outline of the main steps in litigating a divorce. Not every divorce will go through every step. Speak to your attorney regarding your individual situation and your individual needs.

  • Original Petition for Divorce.
    • The divorce process starts by filing a document entitled "Original Petition for Divorce." That document informs the court that a divorce is sought, of any grounds the party may have, and what the party wants the court to award in regard to property and children. At the same time, a party may ask for temporary orders, temporary restraining orders, and/or a protective order.
  • Temporary Orders.
    • Temporary orders are orders issued by the court to place immediate controls upon the relationship of the parties, the parties' financial affairs, child custody, and financial support while the divorce is pending.
  • Discovery.
    • "Discovery" is a broad general term for a number of legal devices designed to gather information. Discovery is sometimes an informal process of exchanging documents or information between the parties' attorneys, or it is a formal process where the parties are required to provide information within a specified time.
  • Mediation.
    • Mediation is a process where both parties meet in a neutral setting with a trained mediator to discuss their differences and attempt to resolve the case.
  • Trial.
    • If the case cannot be settled, then it will be set for trial. Often, in addition to the pre-temporary orders and mediation, a second mediation will be ordered prior to a final trial. Trial is often expensive, stressful, and risky. A trial can be before the court or before a jury upon request.
  • Final Decree.
    • Whether there is a settlement agreement or a trial, at the conclusion of the case a Final Decree of Divorce is drafted. This document spells out who gets what property, where the primary residence of the children will be, how much child support will be paid, and how various child-rearing decisions will be made in the future.
  • Appeal.
    • If there has been a procedural error in the trial, or if the ruling of the court was not equitable or not in the best interests of the children, you may file a motion for new trial, or begin an appeal within a very limited period of time.

What is a SAPCR?

A SAPCR is a Suit Affecting the Parent/Child Relationship. If there is a divorce with children, a SAPCR is mandatory, but a SAPCR can be filed without a divorce. (Example- parents never married, but need to establish visitation and child support).

Can the custody arrangement in my divorce decree be modified?

There are several circumstances that would allow a custody order (either in a divorce decree or in a SAPCR) to be modified. Here are three of the most common situations although no situation will be exactly alike:

  1. The parties agree to the change and that change requested in is the best interest of the child.
    • (Parents may give each other the flexibility to adjust or occasionally change the court-ordered terms of possession and access to accommodate scheduling conflicts (example- change a weekend), but parties who agree to make a substantial and permanent change to the possession order must file a suit for modification to ensure future enforceability.)
  2. There has been a material change in circumstance of the child, a conservator, or another party affected by the order since the earlier of the date the order was rendered or the date the settlement agreement was signed, and the change requested is in the child’s best interest.
  3. The party with the exclusive right to designate primary residence has voluntarily relinquished primary care and possession of the child for at least six months and the change requested is in the best interest of the child.

What is the most important thing I need to do when speaking with my attorney?

Tell the truth… all of it! The good, bad, and the ugly. If your attorney knows about a bad fact, he/she can deal with it, but if you fail to disclose all the facts, your attorney will be blindsided at court and will not be prepared.

CPS came to my house and is doing an investigation, what do I do?

You need to speak to an attorney, so that you know your rights. If your case is in the investigation stage, CPS is trying to determine if abuse or neglect has occurred, and if your child will be safe in your care.

In a CPS case, what is FBSS or Family Based Safety Services?

FBSS stands for Family Based Safety Services, which means you have been investigated by CPS, and they have determined that your home is not safe for your children. A Safety Plan will be implemented. Although each situation is different, the CPS Investigator may “ask” you to place your children with a friend or relative. This is called a “voluntary placement.” I use quotes here because to most, it doesn’t feel voluntary at all. A parent is presented with a choice of find someone to take care of your children or we will seek to have them removed. During FBSS, the parent(s) are provided services and given recommendations to improve the conditions in the hopes of the children returning. If you or a family member is going through this, seek the advice of counsel immediately to determine and be informed of your rights.

CPS has removed my child from my care, what do I do?

Under Texas law, if the Department of Family and Protective Services (CPS) has filed a case against you seeking to terminate your parental rights, you are entitled to a lawyer. If you can't afford an attorney, the court should appoint one for you. If you do not qualify for a court-appointed attorney, hire your own counsel! Seek legal advice immediately.

CPS wants to place my grandchild(ren) or other relative in my home, do I need an attorney?

The advice of counsel would be extremely helpful if you are placed in this position in order to make sure you fully understand your rights and responsibilities for the care of the child(ren), and your duties, if any, regarding the child(ren)’s parents. Misunderstanding your duties could result in CPS disqualifying you as a caregiver. Further, it may help to ensure that the Department (CPS) and you are on the same page with regard to the potential outcomes of the case.

Laura Severt

Laura Severt

Attorney - (Administrative Law, Collections, Construction Law, Estate Planning Wills & Probate Law, Elder Law, Family Law, Guardianship, Special Education Law)

 

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