Frequently Asked Questions
The information presented at this site is not, nor is it intended to
be, legal advice. You should contact an attorney for advice specific
to your own unique situation.
Table of Contents
- I am considering filing for divorce. Can you
explain the process?
- Where do I file for divorce?
- What issues will be addressed in my divorce case?
- I have agreed to let my spouse have primary custody
of our children. What type of visitation rights can I expect to
receive?
- How much child support will I have to pay?
- What is community property?
- How long does it take to get a divorce?
- I was never married to the mother of my child. Our
relationship recently ended and she has refused to allow me to see my
child. Do I have any rights?
- The father of my child refuses to pay child
support. Can I refuse to let him see our child until he
catches up on his payments?
- Is alimony available in Texas?
Divorce proceedings are initiated with the filing of a
divorce petition. Because a divorce
proceeding is a lawsuit, it is necessary to give the non-filing spouse notice of
the filing. A constable or other
person authorized by the court may personally serve a copy of the petition on
the non-filing spouse. The
non-filing spouse is then required to file a written answer with the court
within a specified time.
Uncontested Cases
In those instances where the spouses continue to
communicate amicably it may be preferable to informally present the non-filing
spouse with a waiver of citation. If
the non-filing spouse agrees to sign the waiver, there is no need for service by
a constable. The waiver, when filed
with the court, constitutes the non-filing spouses appearance in the
proceedings. If the parties are
able to reach an agreement concerning all aspects of the divorce (custody, child
support, visitation, property division, debt allocation, etc.) the filing
spouse’s attorney will prepare the Final Decree of Divorce and other documents
as necessary. The documents are
then forwarded to the non-filing spouse for review and comment.
The non-filing spouse may choose to have an attorney review the
paperwork. Once the spouses are
satisfied that the documentation accurately reflects their agreement, each
signs. The filing spouse and
his/her attorney then make a brief appearance in court to present the signed
documents to the judge for signature. The attorney asks the spouse a few simple questions to
satisfy the judge that the divorce should be granted.
Total time in front of the court is usually less than five minutes.
Contested Cases
If the party served fails to file a written answer within
the specified time, the filing spouse may obtain a divorce by default.
If the spouse files an answer, the litigation process begins and the
parties are give the opportunity to participate in discovery.
This is the pre-trial phase of the litigation in which the parties may
request information from each other regarding finances, parenting abilities and
other matters relating to their marriage. This
information may be requested in writing or through the use of oral depositions.
Third parties such as employers, financial institutions, and persons with
relevant knowledge can also be compelled to provide information in discovery. If a dispute over custody of children is involved the court
may appoint a guardian ad litem to represent the interest of the children.
During the pre-trial phase, the parties and their attorney’s may
exchange settlement proposals. The court will typically order the parties to
attend mediation before submitting the case for trial.
If the parties are unable to reach an agreement the case will be resolved
at trial.
A suit for dissolution of marriage may be filed in Texas so long as either
spouse has been a domiciliary of the state for at least six months prior to the
filing. Suit may be filed in the county is which either spouse has been a
resident for the preceding 90 day period.
If the parties are parents of a child, as defined by Family Code section
101.003, the suit for dissolution of marriage must include a suit affecting the
parent-child relationship. The lawsuit must address conservatorship
(custody and visitation), child support and health insurance. In
addition, issues such as asset division, debt allocation, alimony, injunctions,
and orders for protection may be addressed.
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The State and the courts presume that the "standard possession
order" (set forth at Family Code sections 153.311-153.317) provides
reasonable minimum possession of a child for a parent entitled to
visitation. Essentially, the non-custodial parent is entitled to
possession from Friday evening to the following Sunday evening on the 1st, 3rd
and 5th Friday of each month. The parties alternate holidays. If the
parties live within 100 miles of each other the non-custodial parent is entitled
to 30 days during the summer. If the parties reside more than 100 mile
apart the non-custodial parent gets 42 days. Additionally, the party not
otherwise entitled to possession on the child's birthday is awarded a few hours
on that date. Mother's Day weekend and Father's Day weekend are awarded to
the appropriate parent. The standard possession order does not apply to
children less than three years of age. Moreover, the court may deviate
from the standard possession order if doing so is in the best interest of the
child.
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The Legislature has established guidelines to be applied in establishing the
amount of child support. The guidelines are designed to apply to
situations in which the obligor's monthly net resources are $6,000 or
less. "Net resources" bear some relation to net income.
The following schedule is to be applied in rendering the child support order:
1 child - 20% of Obligor's Net
Resources
2 children - 25% of Obligor's Net Resources
3 children - 30% of Obligor's Net Resources
4 children - 35% of Obligor's Net Resources
5 children - 40% of Obligor's Net Resource
6 children - Not less than the amount for 5 children
If the obligor has children in more than one household, the court may apply
the percentages found in the table at
Family
Code §154.129.
A child support order established pursuant to the child support guidelines is
presumed to be reasonable and in the best interest of the child.
Community property consist of the property acquired by either spouse during
the marriage with the exception of the following which are separate property:
a) property owned or claimed by the spouse before marriage;
b) property acquired by a spouse during the marriage by gift,
devise
(gift under a will) or descent (inheritance under rules of in testate
succession);
c) recovery for personal injuries sustained by the spouse
during the marriage,
except any recovery for loss of earning capacity during marriage.
It depends. An uncontested divorce may be finalized no earlier than 60
days after the divorce petition is filed. The time necessary to
finalize a contested divorce varies with the facts of each case and can take
anywhere from 6 months to several years.
Yes. You have the right to file a lawsuit seeking to establish the
parent-child relationship between you and the child. You will not be
recognized as the child's legal father until you are adjudicated as such by a
court of competent jurisdiction. You are also entitled to register
with the registry of paternity in the bureau of vital statistics. You may
register either before the birth of the child or not later than 31 days after
birth. If you fail to register you may not be notified of a proceeding for
the adoption of or the termination of parental rights regarding a child that you
may have fathered.
No. If the father of your child has been awarded periods of visitation
with the child pursuant to court order, you have no right to deny court ordered
visitation. In fact, if you do so, you may be in contempt of court.
Penalties for contempt include fine, incarceration and payment of adversary's
attorney's fees. Moreover, you will cast yourself in a bad light with the
court. The proper recourse is to file a motion for enforcement (contempt)
against the child's father.
Spousal maintenance is available under the following circumstances:
1) the spouse from whom maintenance is sought was convicted or
received deferred adjudication for a criminal offense that also constitutes an act of
family violence and the offense occurred within two years before the date on
which suit for divorce is filed or while the suit is pending; or
2) the duration of the marriage was 10 years or longer, the
spouse seeking maintenance lack sufficient property to provide for his/her minimum reasonable needs and;
a) is unable to support himself/herself through appropriate
employment
because of an incapacitating physical or mental disability;
b) is the custodian of a child who requires substantial care
and supervision because a physical or mental disability makes it necessary that the spouse not be employed outside the home; or
c) clearly lacks earning ability in the labor market adequate to
provide
support for the spouse's minimum reasonable need.
