Frequently Asked Questions for Texas Divorce Lawyers
Individuals facing family law problems often deal with similar issues, but it is important to note, especially when initially researching the legal ramifications, that the legal issues arising from such problems are unique to each individual.
Nonetheless, the following questions and answers provide a general overview of information that is meant to help individuals with their research. However, to get answers or advice based on your unique situation, we encourage you to contact GoransonBain Ausley online or by calling 214-373-7676.
Questions About Divorce
Can couples file for a Texas divorce when they live out of state?
Texas law has certain residency requirements that must be met in order to file for divorce. At least one spouse must have lived in Texas for six months prior to the filing. One spouse must also live within the county where the divorce is filed for 90 days prior to filing. Either the person filing (the petitioner) or the other person named in the filing (the respondent) must meet these requirements.
How long will the divorce take?
Generally, there is a 60-day waiting period before a divorce may be finalized in Texas. The 60 days begins to run from the date the divorce is filed. If parties are in agreement, a divorce proceeding may be finalized immediately following a 60-day waiting period. If the parties are not in agreement, the time necessary to finalize the divorce will depend on the conduct of both parties and their attorneys, the court’s schedule, the matters in controversy and the complexity of the contested issues. A divorce in which the parties are deeply in opposition to an agreement on some or all of the core issues may take anywhere from several months to more than a year.
How much does a Texas divorce cost?
The total cost of a divorce varies depending on the couple’s unique situation. It ranges from a few thousand dollars for amicable cases to tens of thousands of dollars for couples whose divorce cases go to trial. A retainer for an average divorce case is typically in the range of $3,000 to $15,000. The retainer for a contested case varies depending on the facts and could be over $20,000. Family law attorneys charge an hourly rate of $250 to $600 per hour or more.
How can I save money on my divorce?
It is important for clients to establish their goals and make certain that the actions they take in the divorce process will accomplish their goals. Following are some tips on how money can be saved on a divorce:
- Don’t use your lawyer as a counseling service;
- Help your lawyer gather financial information, documents and assist in other work requested by your lawyer;
- Don’t allow your attorney to fight for an asset that is worth less than the cost of acquiring it – conduct a cost/benefit analysis;
- Tell your lawyer your goals and what is important to you;
- Settle issues on your own if possible, such as the division of household items;
- Look for resolution, not revenge; and
- Make a plan to move forward with your life rather than dwell in the past.
What is the difference between a contested and an uncontested divorce?
In a nutshell, a judge decides all or some of the settlement issues in a contested divorce after both parties present their case to the court. In an uncontested divorce, the parties negotiate their own divorce terms with the help of their respective attorneys or other parties who may facilitate cooperation, such as a mediator. An uncontested divorce is more common because it typically takes less time, is less expensive, and provides spouses with more control over their individual futures. However, in highly-contentious situations where spouses cannot agree, a contested divorce may be the only option.
What does alternative dispute resolution (“ADR”) mean?
ADR is a key component in an uncontested divorce that provides multiple methods for negotiating the terms of divorce outside of court. Two types of commonly used ADR in divorce are mediation and collaborative law. Mediation involves a neutral third party who guides spouses through their issues towards agreeable resolution. More formal than mediation, collaborative law is a highly-structured method that may involve the use of third party professionals, such as family counselors, financial advisors, or individuals experienced in other needed areas, who may all assist in developing equitable solutions for spouses.
Can I get a legal separation in Texas?
Texas allows spouses to divorce without separating for any specific amount of time. Unlike many other states, Texas law does not provide any process for legal separation, which would allow couples to live legally separate lives without actually divorcing.
Do my spouse and I both need Dallas divorce lawyers?
You are not required to hire a lawyer to get a divorce; however, if you do hire a lawyer, the lawyer cannot represent both parties. Parties generally do have separate lawyers in complicated or contested divorces in which they cannot agree on major issues to ensure the adequate protection of their own interests.
What does no-fault divorce mean under Texas law?
The term no-fault divorce means it is not necessary to claim fault of one or both spouses to obtain a divorce. In Texas, a no-fault divorce is filed on grounds of insupportability (also known as irreconcilable differences in other states). Conversely, spouses may file divorce on fault-based grounds, including, but not limited to, cruelty, adultery, and abandonment. Fault-based determinations may provide a court with the authority to award the non-fault spouse with more community property than the spouse at fault.
Are premarital agreements only necessary for wealthier couples?
Premarital agreements are common when there is a disparity in wealth between engaged parties, but wealth is not the only issue that can be addressed in these agreements. Couples entering into second marriages can protect their existing family members with premarital agreements. Additionally, couples can be protected when the parties come to the marriage with significant debt. A frank discussion with a knowledgeable attorney can help couples make the right decision.
How will the property be divided in a Texas divorce?
In the event the parties do not reach an agreement regarding the division of their marital estate, the judge is obligated to weigh all the facts and devise a “just and right” division of the assets and debts. Just and right can mean an equal division of the community property or it could mean an unequal division of property depending on the circumstances. There are a number of factors the judge may consider in dividing community property disproportionately, including fault in breakup of the marriage, health of the spouses, and earning capacity just to name a few.
What is the difference between community property and separate property in Texas?
Community property is defined as property acquired by either spouse during the marriage that is not the separate property of one of the parties.
Separate property is defined in Texas as:
- Property owned by a spouse before marriage;
- Property acquired by a spouse during the marriage as a gift or inheritance;
- Recovery for personal injuries sustained by a spouse during marriage, except for any recovery for loss of earning capacity during marriage; and
- Property that can be traced to a separate property asset.
A court can only divide community property and there is a presumption that all property that either spouse possesses at the time of divorce is community property unless proven otherwise.
Is it possible to get alimony in Texas?
The Texas Legislature first enacted an alimony – spousal maintenance – statute in 1995. After several revisions, the most recent occurring in 2011, the statute now provides for spousal support in the following circumstances:
As a general rule, spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking to earn sufficient income to provide for his/her minimum reasonable needs or in developing the necessary skills to provide for his/her minimum reasonable needs during the couple’s separation and during the pendency of the divorce.
If the spouse seeking maintenance establishes his/her eligibility under one of the scenarios listed above, he/she may obtain spousal maintenance for as long as 10 years depending upon the duration of the marriage as follows:
A court however, may order spousal maintenance for a longer period of time if the spouse has a physical or mental disability or if there is another compelling impediment that prevents that spouse from providing for his/her minimum reasonable needs.
The maximum amount allowed for spousal support is the lesser amount of $5,000.00 or 20% of the paying spouses average monthly gross income. Irrespective of the statute, spouses can and often agree to pay the other spouse contractual alimony. In many cases, this is driven by tax considerations. Under the Internal Revenue Code, alimony payments are considered income to the spouse receiving the payments and a deduction to the payors spouse’s income.
What is Collaborative Law?
Collaborative law is another option that divorcing spouses have where it is agreed that the case is kept out of the courtroom. A divorcing couple is more likely to come out feeling completely satisfied if they were able to resolve things amicably without court intervention. Divorce is never pleasant, but it is possible to move out of the process without a lot of bitterness and resentment. This is especially important if children are involved and there will be a future co-parenting relationship.
Collaborative cases are very private and confidential, and the results are predictable since the spouses must agree on all issues. The level of hostility in a collaborative divorce is drastically reduced, and the goal is to produce a settlement that maximizes assets and relationships. The spouses in a collaborative divorce will attend face-to-face meetings (joint meetings) with a team, which consists of the clients and their lawyers, a neutral mental health professional and a neutral financial professional. The joint meetings are typically two hours in length, and generally are held every other week. The average collaborative case is resolved in four to six joint meetings.
There are other unique features of the collaborative process, and additional information can be obtained from the website of the Collaborative Law Institute of Texas at collablawtexas.com. One of the unique agreements that is reached at the beginning of a collaborative divorce is that if the case does not settle and litigation becomes necessary, both collaborative lawyers must withdraw from the case and the clients must hire other trial attorneys if they want to litigate the divorce. Although most collaborative attorneys are also trial attorneys, they cannot wear both hats in the same case. This makes sense because the collaborative process requires that everyone feel comfortable and safe to negotiate the best possible outcome and it keeps the lawyer’s interests aligned with the client’s interests.
What is Mediation?
Mediation is a forum in which an impartial person facilitates communication between the parties to promote settlement or understanding between them. In a traditional, non-collaborative case, most Texas judges will order the case to mediation before trial. If mediation fails, and the matter is not otherwise settled, the case may proceed to trial. The mediator is usually selected by the attorneys for the parties and is a competent family law specialist. The mediator may not impose his or her own judgment on the parties, but he or she will encourage and assist the parties in reaching a settlement of their dispute without compelling or coercing the parties to enter into a settlement agreement.
All matters disclosed during mediation and any record made during the procedure are confidential and generally may not be disclosed to anyone, including the court which referred the case and appointed the mediator, unless the parties agree otherwise. However, an oral communication or written material used in or made part of a mediation is admissible or discoverable if it is admissible or discoverable independent of the mediation. Although mediation is a non-binding settlement conference, if an agreement is reached it is binding on the parties so long as the legal requirements are followed.
What happens if a spouse has committed family violence?
A temporary emergency protective order may be issued in an emergency and is designed to protect the complaining spouse or family member from domestic violence. The temporary emergency protective order may force the other spouse from the home without a hearing under certain circumstances.
Since a temporary emergency protective order is only valid for 20 days, a final hearing during that time will determine if a protective order should be issued. At the final hearing on the protective order, the court must find whether family violence has occurred or is likely to occur in the future. Once a protective order is issued, if it is violated, the police can be called and they may enforce the order by arresting the offender.
Generally, a protective order will last two years and may also include provisions for the person found to have committed violence to complete a battering intervention and prevention program, attend counseling, and perform other acts.
Family Law Questions
Is it easier for relatives to adopt children than non-relatives?
The Texas Department of Family and Protective Services recognizes that relatives who have already played a significant role in the lives of children can often provide the best homes for them. Of course, even though the process differs from other adoptions, full investigation and regular follow-up are required to ensure that a home meets the best interests of the children.
Now that the laws have changed regarding same-sex marriages, do same-sex couples have an easier time adopting children?
Even though the law has changed, the laws and forms pertaining to same-sex adoptions are lagging. Changes are expected to come in the future, but it is best to work with an experienced attorney to help ensure the rights of the parents and the children are fully protected under Texas law.
Do grandparents have automatic visitation rights to see their grandchildren?
Grandparents often have a very special relationship with their grandchildren, and when the children benefit from visitation, the courts may grant rights, even when the parents deny them. However, whether they are married or divorced, parents may have valid reasons for not wanting the grandparents involved in their children’s lives. By discussing the specifics with an experienced family law attorney, grandparents can learn more about their options.
How will custody of the children be decided?
If the parents agree on custody of the children and a parenting time schedule, the judge will approve this agreement. In the event an agreement is not reached, the judge will make a custody decision based on what is in best interest of the child considering all facts and circumstances of the parents and the child. In Texas, a child who is at least 12 years of age can speak to the judge in chambers about where the child would like to live; however, the judge is not bound by the child’s stated preference.
How is child support calculated in Texas?
Texas law sets the following general guidelines for calculating child support. Child support based on these guidelines is called “guideline child support.”
- 1 child = 20% of the noncustodial parent’s average monthly net resources
- 2 children = 25% of the noncustodial parent’s average monthly net resources
- 3 children = 30% of the noncustodial parent’s average monthly net resources
- 4 children = 35% of the noncustodial parent’s average monthly net resources
- 5 children = 40% of the noncustodial parent’s average monthly net resources
- 6 or more children = not less than 40% of the noncustodial parent’s average monthly net resources
To determine the amount of monthly child support, apply the percentages above to the average monthly net resources (unless the child lives in more than one household in which case the calculations are different). The presumptive maximum child support payment in Texas is capped at a percentage of average net monthly resources. The cap on the maximum average net monthly resource amount is adjusted every six years according to inflation.