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Text Box: Here are some frequently asked questions regarding Family Law. Please click on the question to be forwarded to the corresponding answer: The following are common questions about Divorce: ______________________ Here are some common questions about contempt/enforcement: ______________________ Here are some common questions regarding Modification: _______________________ Common questions about Adoption:

What is the legal process in a typical divorce?

Text Box: 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. _________________________________________________________________________________________________________________________________________________
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. __________________________________________________________________________________________________________________________________________________
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. __________________________________________________________________________________________________________________________________________________
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. __________________________________________________________________________________________________________________________________________________
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. __________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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). _____________________________________________________________________________________________________________________________________________________
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). _____________________________________________________________________________________________________________________________________________________
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. _____________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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." ___________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
Answer: Normally, uninsured medical expenses incurred for the benefit of the child(ren) are to be paid 50/50 by each of the parents. ____________________________________________________________________________________________________________________________________________________
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. _____________________________________________________________________________________________________________________________________________________
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. _____________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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. ____________________________________________________________________________________________________________________________________________________
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. __________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
Answer: No. There is a 30-day waiting period after your divorce is final, unless the court waives the waiting period. ___________________________________________________________________________________________________________________________________________________
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. ___________________________________________________________________________________________________________________________________________________
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): the child(ren)'s age(s); the child(ren)'s genders; the child(ren)'s physical and mental health; each parent's physical and mental health; each parent's lifestyle; any history of abuse or neglect; the emotional bonds between each parent and the child(ren); each parent's ability to give the child(ren) guidance; each parent's ability to provide the basic necessities for the child(ren), such as food, shelter, clothing and medical care; the child(ren)'s routines, including home, school, community and religious; the willingness of each parent to encourage a healthy, ongoing relationship between the children) and the other parent; if the child(ren) is above a certain age, the child(ren)'s preference which parent has been the child(ren)'s primary caretaker.

What is the legal process in a typical Divorce?

Will the court issue an immediate order granting me custody of our child(ren)?

Can I file for divorce if I cannot locate my spouse?

Will the court issue an immediate order granting me custody of our child(ren)?

Can I file for divorce if I cannot locate my spouse?

If my spouse and I agree to divorce on all terms that are to be included in the divorce decree, can we use the same attorney?

How long will it take to finalize my divorce?

Can I represent myself in a divorce?

Does Texas have legal separation?

What is the difference between a restraining order and a protective order?

Can the court stop my spouse from harassing and/or threatening me?

Can I immediately force my spouse to leave our home, or can my spouse immediately force me to leave our home?

Will the court issue an order granting me or my spouse custody of the child(ren) immediately upon filing the divorce?

Can I immediately force my spouse to leave our home, or can my spouse immediately force me to leave our home?

Will the court issue an order granting me or my spouse custody of the child(ren) immediately upon filing the divorce?

Does a joint managing convservatorship mean the child(ren) live with each parent one half the time?

What course of action will the court take if both parents want to be the primary joint managing conservator??

What course of action will the court take if both parents want to be the primary joint managing conservator?

What type of possession and access (or visitation) arrangements can I expect?

If I am awarded custody of the child(ren), how much child support can I expect to receive?

What type of possession and access (or visitation) arrangements can I expect?

If I am awarded custody of the child(ren), how much child support can I expect to receive?

Are overtime wages or bonuses included in gross income when child support is calculated?

Do my child support payments go into the child(ren)'s account?

Can I pay my child support directly to my spouse?

Does child support begin once I am divorced?

Does Child support begin once I am divorced?

What is wage withholding?

How are uninsured medical bills paid?

How old does a child have to be before they can choose who they want to live with?

How are uninsured medical bills paid?

How old does a child have to be before they can choose who they want to live with?

Once a court orders a specific amount of child support, can that amount ever be changed?

Because Texas is a community property state, does that mean all assets will be divided equally?

Can the court divide community debts among the spouses in a divorce?

Does the court order dividing debts affect the rights of creditors to take action to collect a debt?

Can I receive a portion of my spouse's retirement? Can my spouse receive a portion of my retirement?

What can I do if my spouse's retirement was not divided by the court in my divorce?

Is alimony available in Texas?

Can the wife change her name in a divorce proceeding?

Can I remarry someone else immediately after my divorce is final?

Can I recover my attorney fees from my spouse?

What course of action will the court take if both parents want to be named the primary joint managing conservator?

What is contempt?

My ex-spouse (child's other parent) won't follow the court's order. What can I do?

Must my ex-spouse (child's other parent) be personally served to start the enforcement process?

What happens if my ex-spouse (the child's other parent) does not appear in court after being served?

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?

Can my ex-spouse (child's other parent) be ordered to pay my legal fees?

Do I have to wait a certain amount of time before I can file a suit to modify child support?

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?

My ex-spouse (or the other parent) and child have moved out of the country in which the divorce was finalized. Where will the modification take place?

Can I recover my attorney fees in a suit to modify?

What is the difference between an agency adoption and an independent adoption?

Can my new spouse adopt my children?

Can I adopt my grandchildren?

What fees can I typically anticipate in an uncontested adoption?