Does it matter who files the divorce first? Yes. There are very slight procedural advantages to filing first: for one thing, the Houston divorce lawyer who brings the case first gets to talk first, and sometimes first impressions are lasting impressions.
Do I have to prove fault of the other spouse to get a divorce? No. You do not have to show fault to get a divorce in Texas, but if there is fault such as adultery, for example it can sometimes be a factor in court, depending on the circumstances.
How long will it take to finalize my divorce? A minimum of 60 days. Texas law requires that the couple wait 60 days after the date the divorce petition is filed to finalize the divorce. How long any individual case takes to resolve depends on many factors. Some courts require a divorce case to go to trial fairly quickly, while other courts are content to let divorce cases languish for very long periods of time.
What does a divorce cost? The cost depends on several factors: whether you and your spouse can reach an agreement regarding the property division and children, how long the case has to be litigated before that agreement is reached, whether temporary court orders are necessary, whether a trial or mediation is necessary, whether discovery is conducted, and how reasonable your spouse and your spouse’s divorce attorney are (or aren’t) throughout the process. My ex-spouse is not paying enough child support for how much he or she makes. Can I get the amount of chils support increased? To modify the amount of Child Support (either an increase or decrease in the amount ordered), one of two things must be proven in court: either
(a) you show that the circumstances of the child or a person affected by the order have materially and substantially changed since the date the order was signed; or (b) it has been three years since the order was signed 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.
Most cases will fall under the three-year category, so the question of whether child support can be modified becomes primarily a question of math.
At what age can a child decide with whom he or she wants to live? The court, not the child, is the ultimate judge of where the child’s primary residence will be; however , at age 12, a child can sign a “Choice of Managing Conservator.”
This is a document that communicates the child’s wishes concerning primary living arrangements to the court. In conjunction with this document, a motion to modify must be filed with the court before the court can modify its prior order.
Although the “Choice of Managing Conservator” document is very persuasive to the court, it is not binding, as the court will attempt to make a decision which is in the child’s best interest (which is not always what the child wants). What is common law marriage? There are two ways people can form a common law marriage: a) they sign a Declaration of Marriage under section 2.402 of the Family Code (this is fairly rare); or b) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and represented to others that they were married. If you are married pursuant to common law and no longer wish to be married to your common law spouse, you will need a divorce.
If a divorce from a common law marriage is not brought within two years after the parties separate, then there is a rebuttable presumption that there was no common law marriage. Note that the presumption is rebuttable, which effectively creates an informal but not an absolute statute of limitations for common law marriages Why do divorce lawyers require up-front retainer fees? Short answer: to make sure they get paid.
Texas divorce lawyers practice law because they like the challenge and because they need to make a living. Like you, they have bills to pay, and they go to work to trade their time and expertise for compensation.
They also have employees and office overhead. The retainer insures that the divorce attorney is compensated for his or her efforts.
How is property divided in Texas? The starting point is that the court presumes that all the property of the marriage is community property, and if you have separate property you have to prove it by tracing it with “clear and convincing evidence.” The court divides the property in a “just and right manner.” What does this mean? In most cases, it means a 50/50 split. In other cases, factors such as unequal earning power and fault in the marital relationship can affect the division of property. There is a reported case where a 90/10% split was deemed a just and right division. This case was upheld at the appellate level.
Can I get alimony? Although getting temporary spousal support (while the divorce is pending) is very common, it is unusual to get post-divorce alimony. You can get post-divorce alimony if you qualify. There are several factors involved which would need to be discussed with your divorce attorney. Do grandparents have rights in Texas? Although the state of the law in this area is somewhat in flux as the result of a U.S. Supreme Court decision striking down another state’s grandparent custody law, under the Texas Family Code, a grandparent can get access (limited visitation) with a grandchild in certain circumstances. Grandparent custody of a child is also allowed under the Texas Family Code if the parents consent or if the child’s present living environment presents a serious question concerning the child’s physical health or welfare. Separation? Texas does not recognize the legal concept of separation.
You are “married” until a court enters a final decree. Nevertheless, you can enter into a “separation agreement” or “partition and exchange agreement.”
Your actions at the separation stage can “point” the case to the final outcome. Take the following example: Spouse “A” moves out. Spouse “B” is left as the primary caregiver of the children.
Later, Spouse “A” decides he or she wants the children. The Court will be hesitant to change the status quo (although it can happen).
However, if you are the victim of recent family violence, please do not let this statement frighten you out of taking action to protect yourself. If there has been family violence, there may be grounds for a protective order — which would legally remove the abuser from the home. Original Petition for Divorce The divorce process starts by filing a document entitled “Original Petition for Divorce.” That document informs the court that a divorce is sought, of any grounds the party may have, and what the party wants the court to award in regard to property and children. Concurrently with the filing of the Original Petition, a party may ask for temporary orders, temporary restraining orders, and/or a protective order .
Temporary orders, are orders issued by the court to place immediate controls upon the relationship of the parties, the parties’ financial affairs, child custody, and financial support while the divorce is pending.
Temporary orders can specify who will live in the marital residence, who will be able to write checks on what bank accounts, and who will have primary custody of the children. Depending on the court, in most cases the parties will be ordered to mediation prior to the actual hearing on temporary orders
Mediation is a process where both parties meet in a neutral setting to discuss their differences and attempt to resolve the case. The process is controlled by a mediator. The mediator can be a lawyer or just a volunteer. The mediator’s task is to help the parties settle the case. Although mediation is a required process, there is no requirement that the parties reach an agreement — each party is free to walk away at the end of mediation and opt for a court hearing.
Discovery is a broad general term for a number of legal devices designed to gather information. Discovery is sometimes an informal process of exchanging documents or information between the parties divorce attorneys.
Often, discovery becomes a formal process in which information is obtained through some of the following tools:
Interrogatories are written questions directed to the other party. Each side is allowed one set, calling for 25 answers. Notice that the rule refers to answers and not questions. This is to prevent the other side from issuing 25 questions with multiple subparts which might require 40 or 50 answers.
Request for Production is a device used to obtain documents. Upon request, the other party must provide any records that you have requested for inspection and photocopying.
Disclosures seek very basic information that has to provided to the other party upon request.
Depositions are question-and-answer sessions in which sworn testimony is taken from the other party or a witness (before a court reporter).
Trial If the case cannot be settled, then it will be set for trial. Often, in addition to the pre-temporary orders and mediation, a second mediation will be ordered prior to a final trial. Trial is often expensive, stressful, and risky. A trial can be before the court or before a jury upon request.
Post-Trial / Final Decree Whether there is a settlement agreement or a trial, at the conclusion of the case a Final Decree of Divorce is drafted. This document spells out who gets what property, where the primary residence of the children will be, how much child support will be paid, and how various child-rearing decisions will be made in the future. The court’s orders in the Final Decree of Divorce can in some circumstances be modified in the future.
Appeal If there has been a procedural error in the trial, or if the ruling of the court was not equitable or not in the best interests of the children, you may file a motion for new trial, or begin an appeal within a very limited period of time.