Family Law Frequently Asked Questions
1. How long will it take to get a divorce?
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, it can be finalized as soon as the sixty-day waiting period expires. If there is a dispute involving children or property division, the divorce proceeding could take much longer.
2. Can my spouse and I use the same attorney?
No. Ethical rules require that an attorney represent only one party in the divorce. While I recommend that each party have their own legal representation, there is no requirement that each party be represented by an attorney.
3. What are the grounds for divorce?
The primary grounds for divorce are insupportability, cruelty and adultery.
- Insupportability means that the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. This is the most common grounds for divorce, and is also known as “no fault” divorce.
- The Court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.
- The Court may grant a divorce in favor of one spouse if the other spouse has committed adultery.
4. What is the basic divorce process?
- One of the parties (called the Petitioner) files a Petition for Divorce.
- The other party (called the Respondent) has a right to be served with the Petition, or he/she may sign a Waiver of Citation. If the Respondent does not file a response and participate in the divorce proceedings, the Respondent may lose the right to present his/her side of the case to the Court.
- The parties may agree upon Temporary Orders or the parties may have a hearing on Temporary Orders.
- Discovery may be conducted. This may include: (1) exchanging an Inventory and Appraisement (a list of assets and debts); (2) Interrogatories (a list of written questions); (3) Request for Disclosure (a written request for basic information about a case and a list of witnesses); (4) Request for Production of Documents (a written request for documents); (5) Request for Admissions (a written list of statements one spouse is asking the other to admit or deny); and (6) Depositions (questions asked and answered under oath).
- The parties conduct informal settlement negotiations or go to mediation. If the parties reach an agreement, they sign an Agreed Decree. If the parties do not reach an agreement, they go to trial.
- A party may appeal the Court’s ruling. If, after a contested trial, one of the parties believes the court made an error, the party may file an appeal with the Court of Appeals.
- If either party disobeys a Court Order, the other party may enforce compliance.
5. What are Temporary Orders?
Temporary orders are the orders which are put in place between the time that a Petition for Divorce is filed and the time that the divorce is finalized. These Orders may be agreed upon by the parties, or may be ordered by the Court. Frequently, the temporary orders address the following:
- Who will stay in the house;
- Who will pay what bills;
- Whether one party will pay to the other party temporary spousal support;
- Whether one party will pay interim attorneys’ fees;
- Deadlines for exchanging an inventory and appraisement (a list of assets and debts);
- Whether the parents will be temporarily appointed joint managing conservators or whether one parent will be temporarily appointed sole managing conservator;
- Who will pay temporary child support and how much will that support be;
- What the possession schedule of the children will be;
- Whether there will be any prohibitions against moving the children from the geographic area designated by the Court; and
- Whether the parties should submit to a custody evaluation, counseling or a psychological evaluation.
6. What are Temporary Restraining Orders and Injunctions?
A Temporary Injunction is an order from the Court to preserve the assets and ensure protection of the parties. If the Injunction is ordered before a temporary hearing, it is called a Temporary Restraining Order (TRO). Many counties have standing Injunctions, which are in place immediately upon the filing of a Petition for Divorce. The police cannot arrest someone for violating a TRO or an Injunction. You must go back to Court to enforce it.
7. What is a Protective Order?
A Protective Order is a civil order issued to prevent continuing acts of family violence. The main objective of this order is to protect a person who is being abused by a member (or former member) of the same household, an extended member, or by anyone in a dating relationship. A Protective Order is criminally enforceable. That means the police can arrest the alleged abuser and that person can be charged with a criminal offense for violating the order.
8. How are assets divided on divorce?
Each party is awarded his/her own separate property assets provided they can be identified. Community assets are divided, but they are not necessarily divided equally. If the parties are unable to reach an agreement with respect to the division of the community assets, the court will make a division in a manner that is just and right.
When making a division of the community assets, the court can take 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, the age of the spouses, the size of the community estate, the size of either party’s separate estate, and who has primary custody of the children.
9. What is the difference in Separate Property and Community Property?
A spouse’s separate property consists of:
- The property owned or claimed by the spouse before marriage;
- The property acquired by the spouse during marriage by gift, devise, or descent; and
- The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Community property consists of the property, other than separate property, acquired by either spouse during marriage.
10. Is alimony available in Texas?
Yes, under limited circumstances. The Court may order maintenance only if the spouse seeking maintenance will lack sufficient property on divorce to provide for the spouse’s minimum reasonable needs and:
- The spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that constitutes an act of family violence and the offense occurred during the marriage and within two years before the date on which the divorce petition was filed or while the suit was pending; or
- The spouse seeking maintenance is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability; or
- The spouse seeking maintenance was married ten years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
- The spouse seeking maintenance is the custodian of a child of the marriage who requires substantial care because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.
11. How much alimony is available in Texas?
The monthly alimony payment is limited to no more than $5,000 or 20% of the payor’s average monthly gross income, whichever is less. Alimony generally is limited to:
- Five years if family violence was involved as referenced above or the spouses were married 10-20 years;
- Seven years if the spouses were married 20-30 years; and (3) ten years if the spouses were married more than 30 years.
However, if the spouse seeking maintenance has an incapacitating physical or mental disability, or is the custodian of a child of the marriage of any age who requires substantial care because of a physical or mental disability, payments may be extended for as long as the disability continues. The statute provides for wage-withholding orders for the collection of spousal maintenance.
12. How will rights for our children be allocated?
“Conservatorship” determines the rights and duties of a parent. Parents may be either joint managing conservators, or one parent may be a sole managing conservator. There is a presumption in Texas that it is in the best interest of the children that parents are Joint Managing Conservators. However, a finding of a history of family violence involving the parents of children removes the presumption. The courts specify that each right and duty shall be exercised by each parent independently, by the joint agreement of the parents, or exclusively by one parent. Examples of these rights and duties include the right to determine the residence of the children, the right to make medical decisions, and the right to make educational decisions.
13. What will the periods of possession of our children be?
“Periods of possession” determines when each parent shall have time with the children. While there are standard periods of possession set forth in the Texas Family Code, the parties may generally agree to whatever periods of possession that they believe are in the best interest of the children.
14. How much child support will a Court order?
If a parent does not have any other children who he/she has a duty to support, as a general rule, a party who is awarded custody of the children can expect to receive child support equal to 20% of the non-custodial parent’s net income for one child, 25% for two children, 30% for three children, 35% for four children and so on, with certain maximum presumed amounts. As additional child support, the non-custodial parent usually will be required to either provide health insurance for the children or, if the custodial parent is providing health insurance for the children, reimburse the custodial parent for the cost. Additionally, uninsured medical expenses are usually split equally by the parents.
However, in setting child support, the courts also consider additional factors in addition to the net resources of a spouse, including:
- The age and needs of the child;
- The ability of the parents to contribute to the support of the child;
- Any financial resources available for the support of the child;
- The amount of time of possession of and access to a child;
- The amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
- Child care expenses incurred by either party in order to maintain gainful employment;
- Whether either party has the managing conservatorship or actual physical custody of another child;
- The amount of alimony or spousal maintenance actually and currently being paid or received by a party;
- The expenses for a son or daughter for education beyond secondary school;
- Whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
- The amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
- The provision for health care insurance and payment of uninsured medical expenses;
- Special or extraordinary educational, health care, or other expenses of the parties or of the child;
- The cost of travel in order to exercise possession of and access to a child;
- Positive or negative cash flow from any real and personal property and assets, including a business and investments;
- Debts or debt service assumed by either party; and
- Any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
15. What is wage withholding?
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.
16. Once a Court orders a specific amount of child support, can that amount ever be changed?
Yes. 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 new job or otherwise, you are entitled 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 entitled to seek a decrease in child support.
17. Once a court enters orders regarding conservatorship and periods of possession, can that ever be changed?
Yes. A party may file a Motion to Modify. If more than one year has passed since the prior order, the party seeking modification generally must establish a change in circumstances and best interest of the child.
18. If my ex-spouse has failed to pay courted ordered child support, what can I do?
You may be entitled to file a Motion for Enforcement of Child Support Order. If the court finds that your ex-spouse has failed to pay child support under an enforceable order and he/she has the ability to pay, the court can hold your ex-spouse in contempt of court, commit him/her to jail for a period of time and order him/her to pay your attorney fees and court costs.