Frequently Asked Questions
- Residency Requirements: How long do I have to live in Texas or any particular county before I can file for divorce?
- Grounds: What are the grounds for divorce?
- Legal Separation: Is there such a thing as legal separation in Texas?
- Alimony: Is Texas an alimony state?
- Child Custody: What is child custody in Texas?
- Child Support: How does the Court set child support?
- Property Division: How is the property division decided?
- Procedure: How soon can I have the final hearing?
- Remarriage: How soon before I can remarry after a divorce?
- Adultery: Is adultery still a significant factor in divorce cases?
- Self- Representation: Can I file for divorce myself?
- Is it possible for both spouses to use the same attorney?
- Attorney’s Fees: How much are legal fees in a divorce case?
Residency Requirements: How long do I have to live in Texas or any particular county before I can file for divorce?
You have to live in Texas for six months and in the particular county where you wish to file for 90 days. This creates an emergency situation sometimes because a person may need a restraining order but they have only lived in the county for less than 90 days at the time of the crises. In this circumstance you must consult with your attorney.
Legal Separation: Is there such a thing as legal separation in Texas?
Texas does not recognize any particular status as “separated”. Either you are married or you are not. What this means is a decision has to be made whether or not to petition the Court for a divorce or not. Some persons might consider themselves legally separated during a divorce, but in Texas what that really means is that temporary orders are in effect during the pendency of a divorce action.
Alimony: Is Texas an alimony state?
Texas is really not an alimony state, and alimony is a new creature first created in the mid-1990′s called “maintenance”. Texas is what we call a “one tone in the water” alimony state. Texas has adopted “rehabilitation alimony.” Generally, alimony must be awarded to a spouse if the marriage was of at least 10 years duration and the spouse who is seeking alimony lacks sufficient property to provide for their minimum reasonable needs and:
- Is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
- Is the custodian of a child with a physical or mental disability that precludes employment outside the home; or
- Clearly lacks earning ability in the labor market to provide for their minimum reasonable needs.
Texas does allow for temporary alimony during the pendency of the divorce proceedings in an amount that is set by the presiding Judge even though the marriage has not lasted for 10 years.
Child Custody: What is child custody in Texas?
If you and your spouse agree on custody, the Court will almost always approve your written agreement, which is within reason.
The person with primary custody in Texas is called “the managing conservator”, and the visiting parent is labeled the “possessory conservator”. Texas now has a presumption of “joint managing conservatorship” and allow for one of the parents to be designated as the primary custodian under the arrangement. Even in joint conservatorship cases, the court is still usually obligated to have one of the parents pay child support to the primary custodian and to order a visitation schedule for the non-custodial parent.
Contested Child Custody. If there is a contest as to which parent should be awarded custody of a child or children, the process is lengthy, cumbersome, emotionally strained, and even sometimes can be financially devastating.
Child Support: How does the Court set child support?
The State of Texas has established guidelines to determine child support based upon the parents’ net resources. The definition of net resources is quite long—for most people it means all wage and salary income and other compensation for personal services, interest, dividends, royalty income, self-employment income and net rental income, less social security taxes and federal income tax withholding for a single person claiming one personal exemption and the standard deduction. For one child the guidelines say 20% of net resources, for two 25%, etc. You will need to take your tax return, W-2 forms and documentary proof of your year to date income to your attorney’s office so he or she will be able to calculate the child support obligation that you can expect to receive or expect to pay under the Texas Family Code.
Property Division: How is the property division decided?
If you and your spouse enter into a written property division, the Courts will almost always approve the agreement. If the parties cannot agree on a division of property, then the Court will divide the parties “community property” in a manner the Court deems just and right, having due regard for the rights of each party and any children of the marriage. Contrary to popular impression, the Court is not required to divide community property 50%/50%. Some of the factors the Court may consider in dividing community property are disparity of income, education and training, health, age, fault in break-up of marriage, nature of property, custody of children, and the parties’ capabilities.
Texas is a community property law state, unlike most states which are not. There are two types of property in Texas, “community property” or “separate property” defined by Texas statutory and case law. Basically property acquired while you are married is community property unless it was a gift to one of the spouses and not the other or unless it is received from an estate, such as an inheritance. “Separate property” is basically any property you acquired before marriage, and property which constitutes a “gift” or that you received from an estate, such as by inheritance. At the time of the divorce a strong legal presumption prevails that all property is community property of both spouses, which can only be overcome if certain evidentiary proof is developed at the trial. In contested cases, it is very important to consult your attorney to receive his or her advice as to the division of property.
Procedure: How soon can I have the final hearing?
A divorce petition has to be on file a minimum of 60 calendar days before the Court can grant a divorce, whether you have an agreement or not. This means you cannot file a divorce suit one day and be divorced on the next. Normally, even in agreed situations it takes 90 to 120 days to fast track a case of divorce through to a final hearing.
Remarriage: How soon before I can remarry after a divorce?
In Texas you cannot get married for 30 days after the date the divorce was granted by the Court. However, the Court can waive the 30 day waiting period (it seems to us, or it has been our experience, that most of our clients in divorce court aren’t interested into rushing into another marriage within 30 days anyway).
Adultery: Is adultery still a significant factor in divorce cases?
Yes it is, how significant depends on the circumstances of each particular case. It is sometimes more significant if there is a custody trial involving very small children, or considering property division and alimony questions. Sexual conduct with another person other than your spouse is still considered adultery even though you and your spouse have separated, and even though you haven’t met the person until after your separation. While to some “adultery” is a pejorative term or is a matter of degree or severity, Texas law still provides it is one matter the Court may consider in contested divorce cases.
Self- Representation: Can I file for divorce myself?
In Texas one has a right to represent one’s self in a divorce or any other matter. The Court will not allow a person who is not a licensed attorney in good standing to represent any other person, firm or corporation. You can represent yourself, but not even your own corporation.
If you represent yourself in a divorce all of the Rules of procedure and evidence apply just the same as if you were an attorney. In divorce cases, we don’t recommend self-representation unless the matter is completely agreed, there are no children involved, and at least one of you knows what you are doing. Don’t call us to ask for help with your homemade legal forms that you bought in the mail or that you obtained over the Internet, that is a service we do not provide. If the matter is simple, most law firms, including ours, will perform the task for you as economically feasible as possible.
Is it possible for both spouses to use the same attorney?
Yes it is as long as both spouses agree. The attorney can file the case for one spouse and the other spouse can sign a Waiver of Citation, which is a common practice. Be cautioned that the attorney technically represents the spouse that he or she files the petition for. Regardless, attorneys have an obligation to tell both parties to the case the truth and so there is nothing wrong with consulting with the other spouse’s attorney if you are not represented by an attorney yourself. Some attorneys are uncomfortable with this, so this has to be determined on a case by case basis.
Attorney’s Fees: How much are legal fees in a divorce case?
This depends on the amount of work required by your legal matter. A simple divorce can run between $1,250.00 and $2,500.00 depending on the work involved. Contested cases usually require a “retainer” paid up front by the client charged by the attorney, with an hourly rate applied against the retainer. Attorney’s fees must be agreed between the client and the attorney. An attorney should not charge you a “contingent fee” in a divorce case. A “contingent fee” is a percentage of the value of property awarded to you in a divorce. You are entitled to know exactly what the attorney’s fees will be, and what the hourly rate charged by the attorney is in divorce matters.