Frequently Asked QuestionsHave questions about divorce or family law? We have answers.
Scroll down or choose from the topics below to see frequently asked questions.
How long does it take to get a divorce?
Divorces take varying amounts of time depending on the complexity of the case, and whether or not the issues are disputed. There is a mandatory sixty-day waiting period from the time the Petition for Divorce is filed until the time the divorce can be granted. If both parties are cooperating extremely well, it’s conceivable that the divorce could be finalized not long after the sixty-day waiting period elapses, but most uncontested cases still take about 90 days. On average, cases take anywhere between three months and one year.
What if my spouse doesn’t want to get divorced?
Texas law does not require the other party to consent to the divorce for it to be granted.
What is a no-fault divorce?
Most divorces are granted on the basis of “no fault.” In Texas, the term for no-fault is “insupportability,” as in,“the marriage relationship has become insupportable due to discord and conflict between the parties’ personalities.” This means that the parties are no longer getting along for whatever reason and want a divorce. Consequently, the issues to be resolved center on division of property and conservatorship and possession of the children, without any inquiry or focus on who is at fault for the failure of the marriage.
What is a fault-based divorce?
In Texas, there are a number of grounds a spouse can allege stating that the other spouse is at fault for the dissolution of the marriage, the most common being adultery. If a party can prove that the other is at fault for the divorce based on one of the recognized legal grounds, the judge can potentially penalize the guilty spouse by awarding a greater portion of the property to the innocent spouse. However, it should be noted that trying to prove fault in a divorce can often drive up fees for both parties and make the divorce process take longer, which can easily exceed any potential financial gain associated with proving that the other is at fault.
Does Texas recognize “legal separation?”
In Texas, there is no such status as legal separation. If the parties are living apart, but neither has filed for divorce, the court is not involved and the legal status of the marriage remains unaffected. However, once a Petition for Divorce has been filed, the judge will issue temporary orders for the separated parties upon a request for such from either one. Temporary orders dictate how the parties are to conduct their affairs while the case is pending, mainly regarding their children and finances.
Can one attorney represent both parties to a divorce?
No, the rules of ethics governing attorneys forbid attorneys from representing opposing parties to a lawsuit, even if the parties agree on all the issues.
Can the judge make me pay alimony?
Alimony in Texas is called “spousal maintenance.” The law limits how much spousal maintenance the judge can make a party pay, and limits the duration as well. The maximum amount of monthly spousal maintenance payments a judge can order is the lesser of $2,500.00 or 20% of the paying party’s gross monthly income. The maximum period of time that a judge can order someone to pay spousal maintenance is 36 months. However, for a party to be eligible to receive spousal maintenance, he or she must meet a number of prerequisites, the first being that the parties must have been married for at least ten years. Most parties do not qualify to receive maintenance, and for those who do, it is rare for judges to order maintenance in the maximum amount or for the maximum duration.
Can I make my spouse pay my legal fees?
In most cases, the judge makes each party pay his or her own fees. Ordinarily, judges only order a party to pay the other’s fees when they have specifically disobeyed a previous court order, and the innocent party was forced to take the matter back to court. Finally, sometimes a judge will order a party to pay the other’s temporary attorney’s fees while the case is pending when the requesting party has little or no income through no fault of their own.
When is a divorce in Texas final?
In Texas, a divorce is final when the judge pronounces that he or she “grants the divorce.” This pronouncement is made at a final hearing. However, a final hearing is not necessarily a contested hearing. Many cases settle out of court and all that is necessary is for one of the parties and his or her attorney to appear before the Judge with a signed agreement. That is called an “uncontested” divorce.
Is the Judge’s ruling at a Final Divorce Hearing in Texas binding?
Yes, the judge’s ruling at a final divorce hearing decides all issues (property division, child custody, child support, etc.) and grants the divorce. However, there are methods by which the judge’s decision on certain matters can be challenged, such as by requesting a new trial and ultimately filing an appeal. New trials are rarely granted, and a party can’t get a new trial just because they’re not happy with the outcome in court; as a result, requesting a new trial is usually just a preliminary step in appealing the judge’s decision. Appeals are very expensive and can take several years, so the vast majority of cases end when the judge rules. Furthermore, appeals are not an opportunity to retry the case to a different court. Rather, an appeal must point to specific legal errors that the judge made that are serious enough to be considered an “abuse of discretion.” Judges have broad authority in family law cases, which means it is usually difficult to win an appeal.
Child Custody & Child Support FAQs
How does a judge decide who gets custody of the children?
Judges make custody determinations based on the children’s “best interests.” In most cases, judges impose a standard possession schedule which is contained in the Texas Family Code (click here to view a standard possession schedule). The standard possession schedule affords both parents with frequent contact with the children, by alternating weekends, splitting holidays, and dividing up the children’s summer break. In some cases, the children are too young to spend large amounts of time away from the primary caregiver, or one of the parents has been shown to make poor parenting decisions. If this is the case, the judge can limit possession, impose a graduated schedule, or require visits to be supervised by the other parent or a third party. It is very rare for the judge to deny a party access to his or her children. When this happens, it’s usually because the parent’s actions have placed the children in serious danger.
How much will child support be?
Child support is calculated based on the paying party’s monthly net resources, and the number of children the party has an obligation to support. The Texas Family Code contains a tax chart for calculating net resources. The chart allows standardized deductions based on the paying party’s gross monthly income. The monthly net resources are multiplied by a percentage based on the number of children to be supported. For example, the percentage for two children is 25%. If the paying party’s monthly net resources total $3,000.00, the party would pay $750.00 per month in support ($3,000.00 x .25 = $750.00). If the paying party is also providing health insurance for the children, as is usually the case, the cost of health insurance is deducted from his or her net resources before applying the percentage. Finally, if the paying party has the legal obligation to support children who are not the subject of the pending lawsuit, the Family Code allows a child support discount based on the number of other children.
Equitable Distribution FAQs
Will the Judge divide our property 50/50?
Texas law instructs the judge to make a “just and right” division of the parties’ property, which really means the judge can divide the property however he or she thinks is fair. The judge considers factors such as the length of the marriage, fault in the divorce, amount of property, the ability of each spouse to earn money in the future, and many others to arrive at a “just and right” division. However, even though the law gives judges this discretion, as a general rule of thumb, it is very rare to see a property division any more disproportionate than 60/40.
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