Family Law FAQ

COMMON QUESTIONS ABOUT DIVORCE

Question: What is the legal process in a typical divorce?
Answer: A divorce is a civil lawsuit to dissolve a marriage. Most divorces, especially those involving children and property, can be complex and can take many different courses. As a general rule, the following is an outline of the typical contested divorce process.
A petition is prepared, which sets forth the reasons for the divorce. The vast majority of divorces are "no fault" divorces, which means that the divorce is requested on the basis of "conflict of personalities that destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation." Other reasons, or "faults," for divorce are adultery, cruelty, conviction of a felony and imprisonment for at least one (1) year, abandonment for at least (1) year, living apart for at least three (3) years, and confinement in a mental hospital.

In Texas, one of the spouses must have been a resident of Texas for a period of at least six (6) months prior to filing. The petition is filed with the court in the county in which one of the parties has resided for the preceding 90 days and is served on the other party, together with a citation, which requires the party's response.

The served party must respond by not later than the Monday following twenty (20) days from the date of service; otherwise, a default judgment may be entered in favor of the spouse filing the petition and the petitioner will be granted the requested relief.

The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information pertinent to the issues of properly division, spousal support, child support, etc.

The parties may attempt to reach an agreement for finalization of the case either by an informal settlement conference or mediation conducted by a third party.

If a settlement is reached, the agreement is submitted to the court. If the judge approves the agreement, a divorce decree will be entered which outlines the terms to which the parties agreed. Note: A court may not enter a divorce decree prior to the exhaustion of a 60-day waiting period that begins to run on the date the petition is filed, even if the parties agree otherwise.

If a settlement is not reached, or if the judge disapproves the agreement, the case is set for final trial, wherein the attorneys present the evidence and arguments for both sides and the judge decides the issues and grants the divorce.


Either or both parties can appeal the judge's decision to a higher court.

Question: Will the court issue an immediate order granting me custody of our child(ren)?
Answer: Texas law confers certain rights and certain duties on a parent, which consist of supporting and protecting the child(ren) as well as the right to reasonable possession of and access to the child(ren). These rights and duties are not conditional. In other words, a parent that does not fulfill his or her duties to support the child(ren) does not necessarily lose his or her rights.

Question: Can I file for divorce if I cannot locate my spouse?
Answer: Yes. There are several procedures available for spouses who cannot be found. These procedures have certain limitations to them, but you can have a divorce granted and the court call giant various forms of relief relevant to the parties' property and/or child(ren). These procedures should only be used as a last resort.

Question: How long will it take to finalize my divorce?
Answer: The Petition for Divorce, which is the first pleading filed in a divorce action, must be on file with the court for a minimum of 60 days before the divorce can be finalized. If the divorce is an agreed divorce, meaning that the parties agree to all terms of the divorce and sign the final decree or a waiver, it can be finalized as soon as the 60-day waiting period expires. If there is a dispute involving the conservatorship of the child(ren) or the division of the marital estate, the divorce proceeding could take much longer.

Question: If my spouse and I agree to divorce and agree on all the terms that are to be included in the divorce decree, can we use the same attorney?
Answer: No. An attorney cannot represent both parties in a divorce action. However, while it is in each party's best interest to obtain an attorney, there is no requirement that both party's be represented by an attorney.

Question: Can I represent myself in a divorce?
Answer: Yes. A person has the right to represent himself or herself before the court; however the court can hold the party to the same standard of knowledge of the law and procedures that an attorney possesses. Laws can be very complicated: therefore, it is advisable to seek the assistance of an attorney. Remember, just because you decide to represent yourself does not mean that your spouse will do the same. In instances where one party is represented by counsel and the other party is not, the party represented by counsel may have a distinct advantage.

Question: Does Texas have legal separation?
Answer: You cannot file for a legal separation, only for divorce. If you file for divorce, you can request temporary orders from the court to deal with issues such as who will live in the house while the divorce is pending, who will have temporary custody of the child(ren), what the visitation schedule with the child(ren) will be and how much temporary child support and/or spousal support will be paid. Temporary orders remain in effect during the pendency of the divorce.

Question: What is the difference between a restraining order and a protective order?
Answer: A protective order will be issued if the court finds that family violence has occurred and is likely to occur in the future. Violation of a protective order may result in criminal prosecution.

In general, a restraining order is intended to keep a party from harassing, threatening and/or causing physical harm to the other party. A restraining order is also intended to keep a party from draining financial accounts prior to the time that a hearing can be held. A restraining order is also intended to keep a party from destroying, hiding or selling community assets prior to the time a hearing can be held. In other words, the purpose of a temporary restraining order is to help maintain the status quo between the parties until there is a hearing.

It is common for courts to adopt "standing temporary injunctions," which take effect immediately upon filing a divorce proceeding. The standing temporary injunction pertains to each party, the parties' property and the parties' children and proscribes certain conduct (i.e., no threats of family violence, no interrupting utilities, no hiding or secreting the children, or no selling assets).

In contested cases, a hearing for the entry of a temporary order will be scheduled approximately two (2) weeks after the petition is filed. It is at this hearing that the court will issue temporary orders concerning conservatorship, possession, access and support of children, as well as the parties' exclusive use and possession of the parties' residence and/or vehicles.

Question: Can the court stop my spouse from harassing and/or threatening me?
Answer: Remember, divorces involving custody and property disputes are highly emotional events. Although a person may be of normal emotional faculties, the stresses of divorce can sometimes cause uncharacteristic behavior. On the other hand, if a person is of a violent nature, a divorce can be a dangerous endeavor. Most courts now issue a "standing order" at the outset of the divorce proceeding, which enjoins a party from threatening, harassing or injuring the other party or the child(ren).

However, there are organizations which are available to people who are being threatened or harmed. The most important thing to remember is that no person has the right to harm another person, especially their own family members. If your spouse is violent, seek help immediately.

Question:  Can I immediately force my spouse to leave our home, or can my spouse immediately force me to leave our home?
Answer:  Generally, no. It is possible, under extreme circumstances such as family violence, to force your spouse to leave your home when your divorce is filed, but the requirements are difficult and require support affidavits and pleadings in addition to those documents typically filed. It takes approximately two (2) weeks after filing the petition for divorce to have such a hearing. This hearing is known as a temporary orders hearing.

Question: Will the court issue an order granting me or my spouse custody of the child(ren) immediately upon filing the divorce?
Answer: Texas law confers certain rights and certain duties on a parent, which consist of supporting and protecting the child(ren) as well as the right to reasonable possession of and access to the child(ren). These rights and duties are not conditional. In other words, a parent that does not fulfill his or her duties to support the child(ren) does not necessarily lose his or her rights to reasonable possession of and access to the child(ren). Normally, the only time a court will limit the reasonable possession of and access to the child(ren) is in instances where it is proven that the child is in physical or emotional danger. If a party unreasonably denies possession of and access to the child(ten), they run the risk that the other party will obtain grounds to limit the denying party's possession of and access to the child(ren).

Question: If my spouse and I are named joint managing conservators of the child(ren), does that mean the child(ren) will live with each parent one half the time?
Answer: No. Texas law presumes that parents should be named joint managing conservators, meaning that each parent is awarded certain rights and responsibilities with respect to their child(ren). Possession of and access to the child(ren) is a different and separate issue. Parents can be named joint managing conservators with one joint managing conservator being awarded primary possession of the child(ren) and the other joint managing conservator being awarded visitation. Having stated that, it is possible for the court to order (or for the parents to agree to) an equal division of parent's possession of their child(ren).

Question: What course of action will the court take if both parents want to be named the primary joint managing conservator?
Answer: Divorce cases involving custody disputes almost always involve a social study. The court will appoint a social worker to meet with both parents and the child(ren), gather information about each parent's involvement with the child(ren)'s education, medical decisions, extracurricular activities and daily routines, the parents' employment and health records, as well as the child(ren)'s school and health records. The social worker may choose to visit each of the parents’ homes to evaluate their living arrangements. The social worker then submits a recommendation for conservatorship, possession and access to the court.

Question: What type of possession and access (or visitation) arrangements can I expect?
Answer: Texas has a Standard Possession Order ('*SPO") and an Extended Standard Possession Order ("RSPO"), which is presumed to be the minimum amount of possession and access allowed for a child three (3) years of age or older.

The SPO provides for possession of and access to the child(ren) on the first, third and fifth weekend of each month beginning at 6:00 p.m. or, and ending at 6:00p.m. on Sunday: each Thursday while school is in session beginning at 6:00 p.m. and ending at 8:00 p.m.; one-half of all of the school vacation periods: and from 30 to 42 days during the summer.

The ESPO provides for possession of and access of the child(ren) on the first, third and fifth weekend of each month beginning at the time school dismisses on Friday and ending at the time school resumes on the immediately following Monday; each Thursday while school is in session beginning at the time school dismisses and ending at the time school resumes on the immediately following Friday: one-half of all of the school vacation periods: and from 30 to 42 days during the summer.

The SPO or ESPO also contain a provision which states that the parents may mutually agree to any possession agreement but, barring mutual agreement, that a parent's possession will be during a stated minimum period.

In some case involving family violence or drug abuse, the court may limit a parent's access and/or require that such access be supervised by a named person or entity.

Question: If I am awarded custody of the child(ren), how much child support can I expect to receive?
Answer: Technically, both parents pay child support. The party considered to have the primary custody of the child(ren) is presumed to be expending funds to support the child(ren). The other party is typically ordered by the court to contribute funds to this primary residence for the benefit of the child(ren), which can be calculated at 20 percent of that party's net income for one child, 25 percent for two children, 30 percent for three children and 35 percent for four children and so on. As additional child support, the noncustodial parent will be required to either provide health insurance for the child(ren) or, if the custodial parent is providing health insurance for the child(ren), reimburse the custodial parent for the cost.

Question: Are overtime wages or bonuses included in gross income when child support is calculated?
Answer: Yes. Any income the party paying child support receives from any source, including overtime, bonuses and dividends from investments, may be included as income.

Question: Do my child support payments go into the child(ren)'s account?
Answer: No. As stated above, child support is paid to the party considered to have primary custody of the child(ren) and that party is given discretion as to what expenses the child support will pay.

Question: Can I pay my child support directly to my spouse?
Answer: Not typically, as most courts now order child support payments to be made to a local registry or disbursement unit. The registry or disbursement unit will post receipt of payments so that you cannot be accused of not making payments. On the down side, if you do not make the payments, the local registry or disbursement unit works to your disadvantage. The court may presume that if the local registry does not reflect that you made a payment, you didn't. The burden of proof then falls on you. If you cannot prove you made payments, you may be subject to sanctions, including being thrown in jail, losing occupational licenses and your driver's license.

Question: Does child support begin once I am divorced?
Answer: Child support begins when the court orders you to start paying child support, sometimes as soon as the first day of the month following the filing of the divorce action. There are circumstances under which a person can be ordered to pay "retroactive child support."

Question: What is wage withholding?
Answer: In any proceeding in which child support payments are ordered, the court must order that child support be withheld from the paychecks of the person who is obligated to pay child support.

Question: How are uninsured medical bills paid?
Answer: Normally, uninsured medical expenses incurred for the benefit of the child(ren) are to be paid 50/50 by each of the parents.

Question: How old does a child have to be before they can choose who they want to live with?
Answer: Prior to September 1, 2009, a child twelve (12) years of age or older could sign a statement to be filed with the court setting forth the name of the person who the child preferred to have the exclusive right to designate their primary residence. Such preference was subject to the court's approval.


After September 1, 2009, either party may request the court to confer with a child, but a child's preference may no longer be substantiated by affidavit.

Question: Once a court orders a specific amount of child support, can that amount ever be changed?
Answer: Yes. Family law cases are very dynamic. The court has jurisdiction to modify the conservatorship, access and support of the children in the event of a substantial and material change in the circumstances of the child or a party. For example, if you become aware that the party who is paying child support has a greater income than when the court ordered the child support, either because of a raise, a promotion, a new job, etc., you are permitted to seek an increase in child support. Conversely, if a party who pays child support has a lesser income then when the court ordered child support, that party is permitted to seek a decrease in child support. There is a legal presumption that, if more than three (3) years has elapsed since the entry of the last child support order, and child support increases more than $5100.00 or 20 percent, then a substantial and material change is presumed.

Question: Because Texas is a community property state, does that mean all assets will be divided equally?
Answer: Not necessarily. There are two (2) types of property: (1) separate property and (2) community property.

Generally, separate property is any property that belonged to a party prior to marriage or was received by gift, inheritance or personal injury claim. Of course, law is never simple. The issue of separate property is a complex and varied issue and should be carefully discussed with an attorney.

Community property is the concept that all property accumulated during the marriage is equally owned by the spouses, such as the marital residence or a second residence, furnishings and appliances, vehicles, financial assets, investments, retirement accounts and privately owned businesses. If the parties are unable to reach an agreement with respect to the division of the community property, the court will divide the community property in a just and right manner by taking into consideration many different factors, including but not limited to fault in the break up of the marriage, the earning capacity of the spouses, the health of the spouses and the age of the spouses.

The court may so divide certain intangible property, such as the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that might be available for valuation and division. A party's attorney may help with this issue through discovery. During the discovery process, the parties' attorneys exchange documents that disclose each party's income, assets and liabilities. Additionally, each spouse may be required to answer questions designed to gather all necessary information about his or her assets and income.

Again, the issue of separate and community property is complex and should be carefully discussed with an attorney.

Question: Can the court divide community debts among the spouses in a divorce?
Answer: Yes, but it is difficult to enforce. The courts routinely order the parties to pay certain debts in a divorce, but if a party does not obey the order and pay the debts he/she is ordered to pay, the court can only render a judgment to the other spouse. Normally, a judgment is not much benefit to the other spouse because a judgment is difficult, if not impossible, to collect from most people. There has to be a large amount of property for a judgment to be effective.

Moreover, if one or both of the spouses are contemplating filing a bankruptcy proceeding, including specific debts in the divorce decree may prevent discharge of the debts even though they are not in the nature of support.

Question: Does the court order dividing debts affect the rights of creditors to take action to collect a debt?
Answer: No. If your spouse does not pay a debt which he/she is ordered to pay and for which both of you are liable, the creditor can sue either or both of you and report it on your credit report. The court cannot issue an order that impedes the rights of a creditor to take action to enforce its rights against either one or both of you. Such action would violate the creditor's Fifth Amendment rights.

Question: Can I receive a portion of my spouse's retirement? Can my spouse receive a portion of my retirement?
Answer: The answer is typically yes. Retirement is a very important and substantial asset of some marriages, especially long-term marriages. While the answer to this question is based, in large part, on community/separate property issues outlined above, a spouse is typically entitled to a share of the other spouse's retirement based on the following formulas:

Pension plan (non-contribution plan):
Number of years married
Number of years in retirement plan x value of retirement plan /2
401K and similar plan (contribution plan):
Value of plan on date of divorce - Value of plan on date of marriage /2

In order to receive an interest in the other spouse's retirement benefits, it will be necessary for your attorney to draft a Qualified Domestic Relations Order (QDRO), which is typically a separate order or decree entered by the court at the time your final decree of divorce is signed. QDROs can be considerably complex and somewhat expensive, but may be very important to you in order to protect your rights and interests. Large companies may have several employee benefit plans (i.e., 401k savings and tax deferral plans, profit-sharing plans, FSOPs, etc.) which will require a separate QDRO. ) The formula used to evaluate the community interest is different from that stated above. The community interest in these types of retirement plans is the increased or enhanced value of the employee benefit plan since the date of marriage. Retirement benefits should be discussed carefully with your attorney.

Question: What can I do if my spouse's retirement was not divided by the court in my divorce?
Answer: The Court may enter orders providing for the entry of a Qualified Domestic Relations Order, or "QDRO," at any time during or after a decree of divorce is entered.

Question: Is alimony available in Texas?
Answer: In a sense, yes. Texas statutes utilize the terms "court-ordered maintenance" and/or "spousal maintenance" rather than alimony. The court may order temporary spousal maintenance during the pendency of the divorce case, which typically is limited to three (3) months and is dependent on the circumstances of the parties, and/or post-divorce spousal maintenance for a period of not more than three (3) years.

The party from whom spousal maintenance is sought must have been convicted of a crime that constitutes an act of family violence within two (2) before the petition for divorce was filed or pending, or, the parties must have been married for at least ten (10) years prior to the time the divorce action was filed. Under the latter requirement, the court must also determine that the party seeking alimony lacks the ability to provide for their own minimum, reasonable needs. Additionally, there are numerous other factors that the court must consider when making a determination of whether alimony is appropriate in a particular case.

Question: Can the wife change her name in a divorce proceeding?
Answer: Yes, as can a husband who has taken his wife's surname (somewhat rare in Texas). It does not cost any additional attorney's fees for such a change and it does not affect any rights or obligations that she (he) had under her (his) former married name. Women (men) considering such a change should consider all the documents that must be changed and the confusion that it may cause her (his) children, but this is a personal decision that each woman (man) should make. Your attorney should be advised of this decision as soon as possible.


Neither party can force their spouse to change their name in a divorce proceeding.

Question: Can I remarry someone else immediately after my divorce is final?
Answer: No. There is a 30-day waiting period after your divorce is final, unless the court waives the waiting period.

Question: Can I recover my attorney's fees from my spouse?
Answer: Yes, but don't count on it. The court can give you a judgment for attorney's fees but, in most cases, it is uncollectible. It is extremely difficult to collect judgments in Texas and few people recover their attorney's fees. It is more common for courts to divide community property in such a way to take into consideration a party's legal fees and costs.

Question: What course of action will the court take if both parents want to be named the primary joint managing conservator?
Answer: Custody disputes almost always involve a social study. Both the social worker and the court (in the instance that there is no social study ordered) may use the following factors to assist them in determining the appointment of the parents as conservators, as well as awarding each parent access to and possession of the child(ren):

 

COMMON QUESTIONS ABOUT CONTEMPT/ENFORCEMCENT

Question: What is contempt?
Answer: Contempt actions are filed at such a time as a person has violated a court order, including but not limited to child support and possession of the child. The court, upon finding that (1) a person is in violation of a court order; and (2) all of the technical requirements have been met, may have the authority to remedy those violations by ordering jail time, and assessing attorneys' fees and court costs, etc.

Contempt actions, or enforcement proceedings, are quasi-criminal in nature and are the most detailed motion that a family law attorney can bring, especially given that the accused party may lose his/her freedom. It is essential, therefore, that the attorney bringing a contempt action be well trained and experienced in contempt/enforcement.

Question: My ex-spouse (child's other parent) won't follow the court's order. What can I do?
Answer: Any violation of the court's order, including but not limited to a parent's failure to pay child support on time or at all, failure to allow visitation, failure to return the child(ren) at  the end of visitation, and some property issue,s may be addressed through a contempt action/enforcement proceeding.


As a general rule, failure to pay child support and denial of possession of the child(ren) have nothing to do with one another. Therefore, if your ex-spouse refuses to pay child support, your remedy is a contempt action, not refusing visitation. Of course, the reverse is also true here.

Question: Must my ex-spouse (child's other parent) be personally served to start the enforcement process?
Answer: The child's other parent must be personally served with the petition, citation and notice. Otherwise, the court cannot enter enforcement orders against him/her.

Question: What happens if my ex-spouse (the child's other parent) does not appear in court after being served?
Answer: The court will issue a capias (arrest warrant) and will set a bond to ensure his/her appearance after arrest.

Question: Is it possible for my ex-spouse (child's other parent) to be incarcerated for failure to follow the court's child support or possession order?
Answer: Yes. Enforcement actions have both a civil and criminal aspect. The court may, among a number of choices, jail a person for up to six (6) months for each separate act of contempt.

Question: Can my ex-spouse (child's other parent) he ordered to pay my legal fees?
Answer: It is typical for the court not only to order a person found by the court to be in contempt to pay (or reimburse) the other party's legal fees and court costs, but to place the other parent in jail until the legal fees and court costs are paid in full. This is a form of civil contempt and is usually limited to those cases in which the court believes  the party placed in jail has the wherewithal to pay the fees, costs and/or  support ordered.

COMMON QUESTIONS ABOUT MODIFICATION

Question: Do I have to wait a certain amount of time before I can file a suit to modify child support?
Answer: A suit to modify child support may be filed if (1) the circumstances of the child or a person affected by the order have substantially and materially changed; or (2) it has been three (3) years since the order was entered and the amount of child support will differ by either 20 percent or $100.00.

Question: My ex-spouse (or the other parent) is the primary conservator of the child, but I want the child to live with me. Do I have to file a modification?
Answer: Yes. However, you must show the court that either (1) the circumstances of the child or either parent has substantially and materially changed since the prior order; (2) a child is 12 years of age or older and has signed a preference affidavit; or (3) the primary conservator has voluntarily relinquished the primary care and possession of the child for at least six (6) months.

In the event the parents are not agreeable to the modification, the court may order a social study. Both the social worker and the court (in the instance that there is no social study ordered), may use the following factors to assist them in determining the appointment of the parents as conservators, as well as awarding each parent access to and possession of the child(ren):

Question: My ex-spouse (or the other parent) and child have moved out of the county in which the divorce was finalized. Where will the modification take place?
Answer: If a child's primary domicile (residence) has changed to another county and the child has resided in that county for more than six (6) months, either party may request the modification proceedings be transferred to the new county of residence. The transfer is mandatory if timely requested.

Question: Can I recover my attorney's fees in a suit to modify?
Answer: Yes, but don't count on it. The court can give you a judgment for attorney's fees but, in most cases, it is uncollectible. It is extremely difficult to collect judgments in Texas and few people recover their attorney's fees.

COMMON QUESTIONS ABOUT ADOPTION

Question: What is the difference between an agency adoption and an independent adoption?
Answer: In agency adoptions, the prospective adoptive parents contact an adoption agency in an attempt to adopt a child. The agency acts as an intermediary between adoptive parents and birth parents and guides all the parties through the necessary steps to finalization of the adoption.

In an independent adoption, the birth parents locate the prospective adoptive parents and they work together to accomplish the adoption, typically utilizing an attorney to guide the parties through the necessary steps to finalization of the adoption.


There are advantages and disadvantages to both adoption processes. An agency adoption can be beneficial because agencies arc familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. The parties typically have a opportunity to get to know each other. Birth parents may not receive counseling in an independent adoption. This can lead to greater uncertainty about the adoption process and the possibility of a change of heart.

Question: Can my new spouse adopt my children?
Answer: Yes, so long as the other parent's parental rights are terminated prior to the adoption taking place. Step-parent adoptions are the most common type of adoption. In the event of a voluntary relinquishment of his/her parental rights, the termination/adoption process is fairly simple. In the event the other parent is unwilling to voluntarily relinquish his/her parental rights, it can be difficult, if not impossible, to finalize a step-parent adoption. Since the family courts liken the termination of parental rights to a "death penalty," they require strict proof of the elements required to involuntarily terminate parental rights, such as a parent's failure to support the child(ren) for a period of one year, voluntarily leaving the child(ren) alone or in the possession of another person who is not the parent and expressed an intent not to return; engaging in conduct or knowingly placing the child(ren) with persons who engaged in conduct that endangers the physical or emotional well-being of the child(ren), etc.

Question: Can I adopt my grandchildren?
Answer: Yes. The court can grant grandparents an adoption of their grandchildren if the technical elements are proven and the court determines that the adoption is in the best interest of the child(ren). However, since a grandparent can be named a managing conservator of the child(ren), some courts believe an adoption is not necessary.

Question: What fees can I typically anticipate in an uncontested adoption?
Answer: In addition to your attorney's fees, you will incur fees and expenses for (1) an attorney ad litem, who is appointed to represent the child; (2) a criminal history background for the adoptive parent(s); and (3) a social study. These fees vary depending on the court the
adoption is filed in.