Commonly Asked Questions About Divorce And Family Law

1. How long will it take until my divorce is final?

The Original Petition for Divorce is the first pleading that is filed in a divorce. That pleading must be on file for at least 60 days before the divorce can be finalized.

2. What is a common law marriage?

In Texas it is difficult to prove that the parties are common law married and the courts frown on these marriages. Essentially in order to prove a common-law marriage you must meet three (3) prongs; 1- the parties must agree to be married; 2- they must live together as husband and wife; and 3 - represent to others in Texas that they are husband and wife.

3. What is community property?

Community property is property that has been accumulated by the parties during the term of the marriage and is subject to a "just and right" division in the event of a divorce. Property that is accumulated during the marriage by gift, devise or descent, is considered an exception to community property and is separate property of the individual to whom it is given or by whom it is inherited.

4. Is there Alimony in the state of Texas?

Yes, but it is not easy to be eligible. In general, these periodic payments are intended to provide limited support for the spouse after the divorce. It is provided to protect long-term homemakers, disabled spouses, spouses who care for disabled children and spouses affected by family violence. The party requesting alimony must have been married for more than ten years. There must be insufficient property for her to support herself, or she cannot support herself because of a disability, a child's disability or a lack of earning capacity. The amount cannot exceed $2,500 per month or 20% of the paying spouse's average monthly gross income. Additionally, a spouse may be eligible for spousal support if she proves the other spouse was convicted of or received deferred adjudication for a criminal offense that constituted an act of family violence. The general rule is that the duration of alimony is limited to three years.

5. How is child support determined?

Usually the party paying child support pays 20% of that party's net income per month for 1 child, 20% for two children, 30% for 3 children, 35% for 4 children, etc. In most cases, the party paying child support is also responsible for providing health insurance for the child. Child support can also be affected by the obligor (party responsible for paying the support ) having additional children.

6. Do we have to have a trial?

Most cases settle before the trial date. The parties are free to enter into an agreement that divides their property and provides for any children. If they cannot agree on their own they will usually have to attend a mediation.

7. Can my child choose which parent he lives with?

A child 12 years or older can execute an "Affidavit of Preference" stating which parent the child wants to live with. The Court will take that into consideration when deciding where the child should live primarily, but ultimately the test is what is in the child's "best interest".

8. What happens if my ex-spouse is not paying the child support ordered?

You can file a "Motion for Enforcement". If the orders are not being followed then the judge can find the party that is not following that order in contempt of court. That spouse can be jailed, and/or fined and ordered to pay your attorney's fees and court costs.

9. How does the Court determine where the children live and what is typical as a custody arrangement?

Typically the parties will agree on the custody arrangement for the children and the parties will be joint managing conservators of the children. That means that both parties are responsible for decision making regarding the children. If the parties cannot agree on terms of conservatorship then the court may order a social study and/or psychological evaluations for the parties and the children. There is usually one party that can determine the primary residence of the children and is entitled to receive child support from the other spouse. There is also "sole managing conservatorship" which is a custody arrangement where one spouse has most of the decision making rights for the children. It is usually in the child's best interest that the parties are "joint managing conservators." Visitation is encouraged by the courts and the non-custodial parent is given visitation on the 1st, 3rd, and 5th weekends of each month as well as on Thursday evenings. Holidays and vacations are split between parents. The parties are free to agree on a visitation schedule between themselves. A child under the age of three may require a specialized visitation schedule.

10. What is a residency restriction?

The courts want to see the parents given every opportunity to be involved with their children and so the Final Decree will usually limit the residency of the children to the county that they are currently living in and nearby counties. The parties are free to decide on residency restrictions.

11. Can child support and visitation ever be changed?

The amount of child support or the visitation schedule can be changed by filing a modification. Once three years have past from the date of the original order child support can be changed by showing that the current amount ordered no longer conforms with the Child Support Guidelines. Prior to three years having past a party must show that the circumstances of a conservator, the child or other party affected by the order have materially and substantially changed since the rendition of the order and the change would be in the best interest of the child.