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Frequently Asked Questions

Family Law Court (the "Divorce Court") is the only Court where in a single lawsuit, you can lose your spouse, your children, your property and your liberty for non-compliance with a Court order or non-payment of child support. This overwhelming prospect is what many have to come to terms with and the first step to that end is the initial interview with an attorney. This interview is the appointment made in response to the plea "Well, I just need to know what my rights are". You will find answers to many of the questions you might have but if we have missed one, please go to our CONTACT US page and email your questions to me and I will answer them as quickly as possible.

Click on the question below and you will be taken to the appropriate answer or you can just scroll down to view them all.

Family Law

 1. No Legal Separation in the State of Texas
 2. When Can Children Choose Custodial Parent?
 3. Children Cannot Refuse Visitation
 4. Child Support and Visitation
 5. Court with Continuing Jurisdiction
 6. Property Division
 7. I am involved in a divorce and I do not think that the child born during the marriage is mine.
     Can I have blood testing done to determine paternity?
 8. How can I find out if a child is my child?
 9. What percentage of the population must be excluded from the possibility of being
     the father of the child?
10. How much will paternity testing costs?
11. How long does it take before I'll receive results?
12. Is there a waiting period between when a divorce is filed and when it is final?
13. Since Texas is a community property state, can you expect a "50-50" split of assets in a divorce?
14. Are divorce actions matters for a judge, or can you have a jury hear the case?
15. What are my chances of gaining custody of my children?
16. Does joint custody mean each parent having equal time with the children?
17. Will I have to pay child support?
18. If my spouse wants a divorce and I don't, how can I stop it?
19. Can a prenuptial agreement avoid messiness at the end of a marriage?
20. What is the first step in the divorce process?
21. Is mediation required in most Texas divorces?
22. What's the first thing I need to do to build a winning divorce case?
23. How often is alimony awarded in Texas?
24. Can one attorney represent both parties in a divorce?
25. If your case is scheduled to go to court on a certain date, are you guaranteed that it will happen?
26. How does the court decide who gets the kids in a divorce?
27. What is Mediation?
28. What if my spouse is harassing me?
29. Which parent gets the tax exemption?


The Marriage Relationship

1. What is a Common Law or Informal Marriage?
2. What is the difference between Separate and Community Property?
3. How is community property divided between spouses in a divorce?
4. What is a Qualified Domestic Relations Order (QDRO)?

Divorce

1. How do people get a divorce in Texas?
2. How long does it take to get a divorce?
3. How long do you have to live in a place to file suit for divorce?
4. How long does it take to get some interim relief?
5. What is the difference between a "fault" and "no-fault" divorce?
6. Will I have to pay/be able to receive court-ordered alimony?
7. When is my divorce final?
8. What should I do if I get served with divorce papers?
9. I won't have custody of my children, how much can I expect to pay in child support?

The Parent-Child Relationships

1. How is child support determined/is it required?
2. Does joint custody mean the child lives half the time with each parent?
3. What is standard visitation under the Texas Family Code?
4. When may a court modify an order for child support?
5. If a person turns over possession of a child to another who was previously paying child support, does the person turning over possession now have to pay child support?
6. How long does it take for a court to modify an order for child support, possession of a child, or access to a child?

Paternity

1. Is there a time limit on getting a court to adjudicate the father of a child?
2. Who can file a Paternity Action?
3. Can I recover attorney's fees and court costs in a paternity action?

Adoption

1. What is involved in the Adoption process?
2. Do I get a new birth certificate for my adopted child?

Enforcement of Court Orders

1. What is enforcement?
2. What orders can be enforced?
3. Can I recover attorney's fees and court costs in the enforcement

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Family Law

1. No Legal Separation
The most common question regards obtaining a "legal separation". This term does not apply in the State of Texas. You are either married in the State of Texas or you are a party to a lawsuit and are getting a divorce.

2. Children Choose Custodial Parent
"At what age can our son or daughter decide where they want to live?" At the tender age of 12 years. The child's election is in most cases the most legally significant element.

3. Children Cannot Refuse Visitation
The answer to "At what age can my child decide not to visit" is in direct contrast to their ability to choose their custodial parent. The answer is: when the child reaches their majority (in the average case, 18 years of age). Just as the child does not have the right to choose to go to school, eat their vegetables or elect their bedtime, they also cannot refuse visitation.

4. Child Support and Visitation
The statement, "I am not receiving my child support, so I do not have to let the children go for visitation" although a common conclusion, is also an erroneous conclusion. Do we not remember that two wrongs do not make a right?

5. Court with Continuing Jurisdiction
The Court where your divorce is filed remains the Court "continuing" to have the authority in all future family suits to make decisions on yourself, your former spouse and the children. You are actually going to feel you remain married to the same District Court after your marriage from your spouse is terminated. The Judges can come and go, but you cannot.

6. Property Division
Equitable division with the Court taking all factors into consideration, which may include fault in the break up of the marriage, length of the marriage, future employability, size of the estate, need for future support and any other equities. A 50/50 division of property may not be the end result.

7. I am involved in a divorce and I do not think that the child born during the marriage is mine. Can I have blood testing done to determine paternity?
Yes. In fact, if you go through the divorce and do not contest paternity and a final decree is entered, you will have waived your right to contest paternity because the Court order will contain a declaration that the child is a child of the marriage, your child and your wife's child.

8. How can I find out if a child is my child?
By filing a petition for paternity and requesting that the Court order HLA or DNA testing of you, the child, and the mother.

9. What percentage of the population must be excluded from the possibility of being the father of the child?
Ninety-nine (99%) of the population must be excluded or the Court shall permit the omission of any further testing if the testing has been conducted sufficiently to establish that an alleged father is not the father of the child.

10. How much will paternity testing costs?
Depending on the type of testing and the facility, paternity testing can range from $215. 00 per person upwards of $1000. 00 per person.

11. How long does it take before I'll receive results?
Anywhere from 2 weeks to 2 months, still depending on the type of testing performed and the facility.

12. Is there a waiting period between when a divorce is filed and when it is final?
Most jurisdictions have a waiting period. This serves either as a cooling off period or as a time to adjust your affairs to single life. In Texas, you must wait 60 days from the time you file until your divorce is final, even if the divorce is uncontested.

13. Since Texas is a community property state, can you expect a "50-50" split of assets in a divorce?
Not necessarily. Property in a divorce is divided in a manner that the judge deems "just and right" and he or she may look at projected future earnings of the parties, who's at fault for the divorce and other criteria in making a disproportionate division.

14. Are divorce actions matters for a judge, or can you have a jury hear the case?
Either party in a Texas divorce can ask for and receive a jury trial, a unique feature of Texas law. But as a practical matter, judges hear most divorce-related matters and jury decisions that are binding on the court are limited. Juries are more common in child custody cases.

15. What are my chances of gaining custody of my children?
That depends on the facts of your case. Joint custody is preferred in this state. If both parents were involved with the children during the marriage, joint parenting will be the presumption going into the case. There are many misconceptions about joint custody and it is important to understand them before making a decision.

16. Does joint custody mean each parent having equal time with the children?
Not always. Joint custody means the sharing of parental rights and duties and not necessarily equal time.

17. Will I have to pay child support?
The spouse who does not have primary custody of the children will, in most cases, pay child support to the primary custodial parent after a divorce based on guidelines in the Texas Family Code, according to income.

18. If my spouse wants a divorce and I don't, how can I stop it?
Once a divorce is filed in Texas and one party wants to go through with it, you can't stop it from happening in the court system. Your only hope is to convince your spouse to consider reconciliation.

19. Can a prenuptial agreement avoid messiness at the end of a marriage?
"Pre-nups" have become a very popular way to avoid the struggle over assets when a marriage ends. These agreements have historically been used to deal with assets that are not divisible, such as an interest in a family owned business or a large tract of real estate. Now people with relatively modest holdings use prenuptial agreements to make a split less messy.

20. What is the first step in the divorce process?
Once you've decided that divorce is the best thing for you, your attorney will file the divorce petition. This contains certain factual information about the parties, as well as grounds for the divorce. Because Texas is a no-fault state, the reason for the divorce usually is incompatibility. This means the parties have different interests and have grown apart and this condition is irreconcilable.

21. Is mediation required in most Texas divorces?
Yes, in most cases. Texas has the most progressive and intensive use of mediation in the country. In 1987, four of the seven family district court judges in Dallas County began to order mandatory mediation in all divorce cases. Since then, most Texas courts have begun to require mediation before a family law case can be scheduled for trial.

22. What's the first thing I need to do to build a winning divorce case?
Besides hiring an accomplished matrimonial law attorney, the most important thing you can do at first is to secure three to five years of financial records and anything else that might become evidence in your case.

23. How often is alimony awarded in Texas?
Although the Texas Legislature passed an alimony statute in 1995, not many people qualify. Unless you have no significant assets or means of support or you and your spouse agree to it, there will be no significant long-term alimony once the divorce is final.

24. Can one attorney represent both parties in a divorce?
No. An attorney can draft the documents in a divorce for both parties to sign, but he or she can't legally advise more than one of the parties how to proceed in the divorce.

25. If your case is scheduled to go to court on a certain date, are you guaranteed that it will happen?
No, because 10 to 15 cases may be set on the judge's docket the same day as your case. Another case may be heard before you and your case may be reset for another day.

26. How does the court decide who gets the kids in a divorce?
The court can and should consider one thing and one thing only: The best interest of the children. A judge seeks to determine who is best suited to provide a stable environment for them. This person will be named Managing Conservator, or Joint Managing Conservator in Primary Possession. The other will be named a Joint Managing Conservator or a Possessory Conservator. Texas law prohibits discrimination based on gender in making this determination. However, for children under three, rarely will possession of the children go to the father. Where there are 2 or more children, the court will rarely split up the children unless the parents agree or there is a very good reason. A child who is at least age 12, can tell the court which parent they want to live with, and the court will certainly consider it. However, the wishes of the child may be ignored when their choice is not in the best interest of the child. Be aware that custody fights are expensive. By hiring experts, taking depositions, conducting extensive discovery, and using lots of attorney time to prepare for and have a trial, a heated custody fight will cost between $10,000 to $30,000 dollars.

27. What is Mediation?
Mediation involves trying to come up with a settlement using trained mediators to resolve property or child related issues. The Courts will usually order mediation prior to a trial. Mediation is an opportunity for the parties to determine the issues in a divorce themselves before a judge will make the decision for them.

28. What if my spouse is harassing me?
Being married does not give a person the legal right to harass or assault their spouse. If your spouse harms you, or even threatens you, call the police immediately! There are criminal laws that protect persons from assault and harassment, whether by telephone or in person. These laws apply to married persons.

29. Which parent gets the tax exemption?
Federal tax laws determine which parent may claim a child as a dependant. Usually, the parent who has the child over ˝ of the year and provides over ˝ of the financial needs of the child will claim the child. If the parties agree and execute the proper forms either parent may claim the child as a dependant


The Marriage Relationship

1. What is a Common Law or Informal Marriage?
A man and a woman may enter into an informal marriage if 1) they agree to be married, 2) live in Texas as husband and wife, and 3) represent to others in Texas that they are married. There is no minimum time period required, but both parties must be 18 years or older.

2. What is the difference between Separate and Community Property?
Separate property is that property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance, and can include recovery for personal injury. It is presumed that all property acquired by the parties during the marriage is community property.

3. How is community property divided between spouses in a divorce?
The judge divides community property and liabilities in a "just and right" manner that may result in the judge awarding more community property to one spouse. In making the division, the judge can consider any relevant factor, which might include evidence of:
  • Fault in the break-up of the marriage
  • Differences in earning capacities and education
  • Age and health of the parties
  • Any special needs of the parties
  • Separate property or potential for inheritance of either spouse

4. What is a Qualified Domestic Relations Order (QDRO)?
A Qualified Domestic Relations Order (QRDO) is required when IRS qualified retirement plans (e. g. IRA or 401k plans) are divided in a divorce. The QRDO must meet the requirements of the retirement plan involved.


Divorce

1. How do people get a divorce in Texas?
Either person in a marriage is entitled to file suit and be divorced in Texas, if one of them meets the residency requirements. Texas has a "no fault" divorce statute that simply requires one of the parties to claim that the marriage is "dead" and can't be saved. In a divorce the court will determine conservatorship, access and support of minor children of the marriage and will divide the community property and allocate the community debt. A court may also determine "separate property" of each party and restore a woman's prior name if she requests the court to do so. The parties should not file for divorce unless they have made very effort to save the marriage, and a court may order counseling, if the court believes it would be productive. The court can not grant the divorce until at least 60 days has passed from the date of the filing of the divorce suit. Most couples can reach an agreement with assistance of attorneys. Agreements save money and emotional energy for the participants. Look also at the collaborative law options for a divorce.

2. How long does it take to get a divorce?
The minimum wait period from the filing of a petition for divorce is 60 days when the parties agree on all terms. Most contested divorces can be concluded within 9-12 months, but some take longer.

3. How long do you have to live in a place to file suit for divorce?
You must be a resident of the State of Texas for a period of at least 6 months and a resident of the county you file in for at least 90 days immediately prior to filing the divorce.

4. How long does it take to get some interim relief?
If interim relief is needed before the entry of the Final Decree of Divorce, a request for temporary orders is filed with the petition for divorce along with a request for hearing on the temporary orders. A hearing on temporary orders can usually be obtained within two weeks of the filing of the request, but the timing on this depends on the court's schedule and may take longer. Interim relief can be obtained for such things as who gets use of the house or other property, child support, and spousal support.

5. What is the difference between a "fault" and "no-fault" divorce?
In Texas, a divorce may be granted without either party being at fault. A divorce may also be granted when one party is found to be at fault in the break-up of the marriage (e.g., adultery or cruelty). Generally, a fault based divorce is plead to provide a basis for an unequal property division.

6. Will I have to pay/be able to receive court-ordered alimony?
Before a divorce is finalized, all income to the marriage relationship is community property, so it is relatively easy to have the Court order interim spousal support, depending on the circumstances of the parties and what the Court considers necessary and equitable. For the Court to award alimony after a divorce is finalized is considerably more difficult and the circumstances must meet certain statutory requirements in the Texas Family Code.

7. When is my divorce final?
Your divorce is final on the day the Decree of Divorce is signed by the Judge. You may not remarry for 30 days after your Decree is signed due to possible appeals.

8. What should I do if I get served with divorce papers?
Contact an attorney immediately so that your Answer (notice to the Court) can be filed. If you fail to file an Answer after being properly served, your spouse can go to Court without you and get a divorce that divides property, assigns parent rights and orders child support without your say so.

9. I won't have custody of my children, how much can I expect to pay in child support?
Child support is the money paid by a parent without full time possession of the children to the parent with full time possession of the children. Usually, the amount of child support to be paid by a non-custodial parent is determined by the Texas Family Code guidelines. Child support is based upon the net resources of the non-custodial parent. Net resources are defined in the law, but approximate the gross income less taxes, cost of the child's health insurance, and certain other deductions. The guidelines in the law provide that child support equal to 20% of the net resources for the first child, and an additional 5% of net resources for each child thereafter up to 40%. The court can order more child support if the judge believes the non-custodial parent has become voluntarily unemployed, or underemployed for the purposes of reducing the child support calculation. The non-custodial parent will provide or pay for health insurance and half the un-reimbursed medical expenses


The Parent-Child Relationships

1. How is child support determined/is it required?
Generally, the Courts in Texas require payment/receipt of child support in some form. Child support is set according to a formula based on the net resources of the parent paying without regard to the parent receiving the support. Net resources are determine using a table in the Texas Family Code and includes salary, commissions, overtime, bonuses, dividend income, lottery winnings, etc. , etc. If the person paying has no other children than those before the Court, the percent of net resources will be 20% for 1 child, 25% for 2 children, 30% for 3 children, 35% for 4 children, and 40% for 5 children. There are caps and other considerations on child support amounts that may affect some individual payors.

2. Does joint custody mean the child lives half the time with each parent?
No. Joint custody, otherwise known as joint managing conservatorship is a sharing of the rights, duties, and powers parents have concerning their children. The Courts generally find that it is in the best interest of the children to have a primary residence because of school considerations.

3. What is standard visitation under the Texas Family Code?
A Standard Possession Order (SPO) is defined by the Texas Family code and provides for parents that live within 100 miles of each other and for parents that live outside of 100 miles of each other. For parents living within 100 miles of each other, the SPO provides for possession by the parent not establishing the primary residence on the 1st, 3rd, and 5th weekends of the month, Thursday evenings during the school year, sharing of holidays and spring break, and extended summer visitation.

4. When may a court modify an order for child support? ?
The court may modify an order that provides for the support of a child if:

(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of:
  1. the date of the order's rendition; or
  2. the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or
  3. it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $ 100 from the amount that would be awarded in accordance with the child support guidelines.
(2) the child is at least 12 years of age and has filed with the court, in writing, the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or
(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

5. If a person turns over possession of a child to another who was previously paying child support, does the person turning over possession now have to pay child support?
If a court finds that a person has voluntarily relinquished the primary care and possession of the child to another person for at least six months, the court may order the person turning over possession to pay child support. The person who was previously paying child support may also have the child support obligation suspended or have a claim for reimbursement for the period of possession of the child.

6. How long does it take for a court to modify an order for child support, possession of a child, or access to a child?
Temporary Orders- temporary orders on a divorce modification can be implemented within days to several weeks depending upon the severity of the circumstances. A higher standard is required for modification under temporary orders so that the child’s situation is not modified in the short term and returned to the prior situation on the longer term.

Final Orders - final orders normally take approximately 6 months or longer, depending on the analysis and evidence required to get to a final trial, and the county/court in which the case is prosecuted.


Paternity

1. Is there a time limit on getting a court to adjudicate the father of a child?
Yes. Generally, if the child has a presumed father, a suit to determine parentage must be brought before the child's fourth birthday (there are exceptions). If the child does not have a presumed, acknowledged, or adjudicated father, the suit to determine parentage may be filed at any time.

2. Who can file a Paternity Action?
The following people may file a paternity action: 1) the mother; 2) the man who wants to determine his parentage; 3) a relative of the child's mother or alleged father if that parent is deceased; 4) the child; 5) a government agency; or 6) any person closely related to the mother of the child if the mother is deceased.

3. Can I recover attorney's fees and court costs in a paternity action?
Yes. The court must order recovery of attorney's fee since this action is in the nature of child support.


Adoption

1. What is involved in the Adoption process?
Before an adoption can be finalized, the parental rights of the birth parents must be terminated. A petition for adoption must be filed with the proper court, and the child must live with the adoptive parents for at least six months. An ad litem for the child may be appointed and a social study, background check, and criminal history check of the adoptive parents must be performed. A health, social, education, and genetic history report of the child may also be required. Once these matters have been completed, a hearing is held with the court to determine that the adoption is in the best interest of the child.

2. Do I get a new birth certificate for my adopted child?
Yes. The new birth certificate looks identical to any other birth certificate. The parent information names the adoptive parents and does not indicate that the child was adopted.


Enforcement of Court Orders

1. What is enforcement?
Enforcement is when a lawsuit is filed against a person for violating a court order.

2. What orders can be enforced?
  • Orders for any of the following may be enforced by a family court:
  • Child support
  • Child visitation
  • Property division ordered in a divorce
  • Spousal maintenance (alimony)

3. Can I recover attorney's fees and court costs in the enforcement action?
Yes. Attorney's fees and court costs are generally recoverable in any suit to enforce a court order. The court may order a person to pay attorney's fees and court costs as a condition of a suspended jail sentence, as well.


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