Frequently Asked Questions about Family Law in Texas

Do you offer consultations to discuss specific details of my case?

Yes. We will be happy to see you in the office to discuss your problem. A fee is charged for the time, but less than the normal hourly fee. The appointment generally takes 30 minutes to one hour. An attorney is able to get a better idea what your real problem is after a consultation with you in person. Normally litigation is like elective surgery. You know that you probably want to do something, but it doesn’t have to be done this afternoon. You would be best served by consulting with more than one lawyer and getting more than one opinion. You are then better able to weigh what you are told against the experiences of your friends/co-workers and your own common sense. In other words, it is in your best interest to be an educated consumer.

Can the original court orders be changed?

Generally speaking, all orders concerning property issues are final and cannot be changed. Orders concerning children may be modified if there is a change in circumstances.

Do grandparents have rights?

Texas recognizes the rights of grandparents in certain limited circumstances.

What is the standard visitation schedule/standard possession order?

The standard possession order is the statutory scheme that is designed to provide almost equal time between the children and the non-custodial spouse. It is established in the Texas Family Code and applies to children three (3) years of age or older. It is the visitation scheme that is generally enacted. Generally, one parent has possession of the children on the first, third, and fifth weekends of each month, and on Thursday evenings during the school year. Holidays and summer time periods are allocated between the parents.

For most parents, it is intended to be a statutory minimum of contact. There is no schedule for children under the age of three (3). Those schedules are generally custom made for the specific parents.

How long does child support last? What about college?

Child support usually continues until the child reaches age 18, or graduates from high school, whichever occurs last. If the child is disabled, it may be possible to continue child support for an indefinite period of time. Otherwise, Texas law makes no provision for support (or payment of college) after high school.

How does the court decide how much child support I should pay?

Texas has established a formula to calculate what amount a non-custodial parent should pay for child support. If your net monthly income is less than $7,500, Texas law has established the following guidelines for child support payments. The amount withheld is based on your net income each month.

20 percent for one child
25 percent for two children
30 percent for three children
35 percent for four children
40 percent for five children
Not less than 40 percent for six children
Special rules apply in cases of split or joint placement or multiple children in different households.

(See the multiple family adjusted guidelines for the percent of the net resources that are applicable to your case). To determine the Obligor’s net resources for child support purposes, see the tax tables. If you go down the left-hand column of either of the employed person’s tax table or the self-employed tax table you will find a figure that represents the Obligor spouse’s average monthly gross income. From that subtract the standard deductions of Federal Income Tax and Social Security, on that line – that will give the person’s net income for child support purposes. In some cases that person is also entitled to deduct State Income Taxes, Union Dues, and that portion of the child(ren)’s health insurance premium that he/she pays. Once the proper deductions have been made from the person’s gross income, take the percentage from the multiple family adjusted guideline table and apply it to the net income figure. The result is the amount of child support that should be paid to the custodial spouse.

If a court believes that you are not making as much money as you should, child support amount may be based on your earning potential or past earnings record.

My child(ren) does not want to go on the visitation. What rights do they have?

This is a particularly thorny problem. When it comes up, judge’s normally assume that the child(ren) do not want to see their other parent because of some influence of the custodial parent. Don’t let your kid(s) get you in trouble. If the child(ren) doesn’t want to go, you are under a duty to encourage them to go. If they flatly refuse to go, then they have to communicate that to their non-custodial parent. Do not get between these two or you will find yourself looking down the barrel of a contempt action.

At what age can a child(ren) designate which parent they want to live with or be their primary conservator?

A child(ren) may file a Designation of Preference once the child has attained the age of 12 years. This designation is not binding on the Court. It is just one factor that is considered. Judges reserve the right to act as if they were a parent and to decide what is best for the child. However, the older the child(ren) who makes the designation, the more weight the Judges are inclined to give to that designation.

What happens when parents cannot agree on a custody arrangement?

There may be situations where a contested trial is necessary. However, it is very important that parents engage in a thorough discussion of options and concerns with an experienced family law attorney before ultimately deciding to take this issue to a judge or jury.

In most cases where an agreement cannot be reached, professional services will be required to assist the Court in making a decision. A social worker will usually be appointed to conduct an investigation and make a recommendation to the Court. Psychological evaluations of one or both parties, as well as the children, may be conducted.

What does Joint Managing Conservatorship mean?

Joint Managing Conservatorship is basically a title. It is the designation of a parent’s rights and duties, and the division of parenting time that has true meaning. Parents will either share, allocate, or apportion parental rights and duties. In most cases, the child’s residence will be restricted to a defined geographic area. Joint Managing Conservatorship does not mean “equal time” with each parent, and does not preclude the payment of child support. In most cases, one parent will be designated as the primary parent, and each parent will be awarded time with the child in accordance with the Standard Possession Order.

If, after the divorce, my ex-spouse does not pay child support do I have to send the child(ren) to see him/her? -OR- if, after the divorce, my ex-spouse refuses to let me see the children, can I stop paying support?

In Dallas County, that knife cuts both ways. You cannot refuse access of the child(ren) to the deadbeat parent not paying child support. Likewise, you are not justified in withholding support because the other side does not let you have your access to the child(ren). Either path will lead you into Contempt of Court with the possibility of jail time, a fine, and attorney’s fees being accessed against the guilty party. A parent has the right to see their child(ren) whether or not they ever pay their child support. An obligor parent has the duty to pay their child support whether or not they ever see the child(ren). If you are denied support or access, you need to speak with a lawyer. Contempt(s) are particularly tricky procedures and should be handled by someone trained in the area.

If my spouse gets the house or the car and I’m still on the note, will the award of the property relieve me of any obligation I might have to the financing company?

No. Unless you and your spouse are able to refinance the property, vehicle, or encumbered possession/item, you will have a joint liability with your spouse regarding the debt on that item. There is no way out of this dilemma unless the spouse who takes the item is able to refinance it and get the note entirely into their name.

Am I eligible for alimony?

Alimony is available under very limited circumstances. Generally, a 10-year marriage is required along with other criteria that show a spouse will be unable to provide for their basic needs. There are limits on the amount and duration.

Is property divided in half in Texas?

The Court is charged with dividing community property between the spouses in what is called a “Just and Right Division.” This does not necessarily mean 50/50. The Court has discretion to grant an unequal division of the community to one spouse or the other depending on considerations of various rights and equities between the parties. Don’t get stuck on the idea of 50/50. You will find that the Judges generally try to do what they think is fair.

Can a spouse claim a piece of my retirement?

Retirement interests, like all other property interest accumulated during marriage, is generally community property that is subject to division by the Court upon dissolution of the marriage. This general rule, like all other general rules, is subject to some exceptions which may be more specifically addressed / answered by your lawyer.

What is community and separate property?

A full answer to this particular question could fill a textbook. However, the general rule is that all property possessed by both parties at the dissolution of the marriage is presumed to be community. A spouse’s separate property is the property that they brought into the marriage or that they acquired during the marriage by gift, devise or decent. Basically, it is property you had before you married your spouse or property you acquired by gift or inheritance that is your separate property. However, you have to be able to identify that property to a reasonable certainty and be able to segregate it from the community property. Once again, your lawyer is the best person to advise you as to the characterization of the property that you and your spouse may have.

Community property is subject to division upon the dissolution of a marriage. Separate property must be returned to the owner spouse.

Can I get temporary use of my house or car? Temporary custody of my children? Temporary child support?

A party may ask the Court to award them various kinds of temporary relief. These matters are generally decided at a Temporary Hearing scheduled between ten to twenty-one days after the date of filing. The actual date depends on the case and the Court’s docket. Judges have the authority to grant relief that is temporary in nature and generally concerns child(ren), use and possession of property, and things that are necessary to fully develop your case.

Do I have to go to court?

Generally, yes. In the ordinary case, the Court has to obtain competent sworn testimony which is produced in open court before a court reporter so that there is evidence on which to base the judgment (divorce). This requires the moving party (party who initialized the case) to appear in Court, to be sworn as a witness and to give testimony (evidence) in the case. In some cases, the defending party (party on the other side) does not have to go. However, your lawyer will explain whether or not you need to attend the hearing at a later date.

How do I get started?

Call for an appointment to discuss your specific facts and circumstances.

If you are ready to retain an attorney, the attorney will gather the basic information needed to file your case, have you sign a contract for services, and determine a retainer fee. A retainer fee is similar to an escrow payment or down payment. Usually, the attorney sets the retainer fee baiss on the filing fees, service fees, and an allowance for a portion of the impending attorney’s time.

Your lawyer then takes the information that you have given them and prepares an Original Petition for Divorce or Modification (Custody, Visitation, Child Support) to file at the District Clerk’s office. If the case is beginning as a contested matter, the attorney will also have citation (a legal instrument that tells a person that they have been sued and instructions regarding what to do) or other documents issued by the clerk, and hire process server to serve the papers on the other party.

Then, your papers are served on your spouse / ex-spouse and they have a time designated to respond, or to make an appearance at Court (This depends on the way the case is drawn up. It would be better for you to consult with your lawyer about your own individual case because at this point things vary greatly between uncontested, contested, and hotly contested matters.

How much does it cost?

This is another difficult question to answer. The primary expense in any form of litigation is the lawyer’s time. Most lawyers charge by the hour plus their expenses (filing fees, service fees, postage, copying, paralegal time, deposition costs, etc.) The more that you and your spouse can agree on, the less the lawyer has to do and the less expensive it is for you. Also, please remember that your lawyer only controls one half of the litigation. The lawyer on the other side has the ability to influence the amount of time and effort that your lawyer has to put into it. It is generally best for you to pick someone to help you that has a great deal of experience in Family Law. An experienced lawyer knows what he is doing, doesn’t have to learn things as he goes along and can be economical in the amount of time that you are charged for.

What is the difference between a contested and uncontested divorce?

An Uncontested Divorce is where both parties have agreed to everything in advance of talking to the lawyer. They know that they want a divorce, how they want their property divided, who is going to be primarily responsible for the children, what support should be paid, what access the non-primary parent should have to the children, and all of the other details.

A Contested Divorce is one where the parties disagree on some or all of the important parts of the case. If these matters remain in dispute between the parties, then the decision must be made by a judge and/or judge and jury.

There are cases that begin as a Contested Divorce, but are concluded by an agreement after negotiation and/or mediation. These cases are generally still considered contested cases although they have reached an uncontested ending.

There are also cases which begin as an Uncontested Divorce and as the parties begin to draft their paperwork, one of the parties decides that the settlement they thought was acceptable is no longer acceptable.

How long does a divorce take?

This is a difficult question to answer. There is a statutory “Cooling Off / Waiting Period” in the State of Texas. A divorce cannot be granted in the first sixty (60) days following the date of the filing of the Petition. If all the paperwork is done correctly and approved by all parties, the divorce could conceivably be proved up (finalized, which will require going in front of a Judge and offering evidence) on the sixty-first (61st) day. However, in our experience, agreed divorces will normally take three (3) to six (6) months and contested matters normally take six (6) months or a year, or longer.

Do I need to hire a lawyer?

The law says you have the right to represent yourself. However, we tell people that being their own lawyer is like being their own plumber. You can do it yourself, and if it is done right, you can save a lot of money. If you make a mistake, you have a terrible mess. We constantly see people who have purchased “KITS” over the internet to do their own legal work. Sometimes the “KITS” and “Associated Advice” cost more than most competent lawyers would charge. More often than not, they are generated in another state. Sometimes the “KITS” do not fit their specific problem. Trying to stretch a General Form into a Specific Purpose Form is a mistake. Of course, we never see the people that are successful since they have no reason to call. Bottom line: you can do your own legal work, but it is not advisable. This is particularly true if you have children. You may end up with an unenforceable order.It is also important to remember that an attorney can only represent one party in a lawsuit. If your spouse tells you that you can use the same attorney, this is not entirely true.

One attorney can draft all of the paperwork and process the divorce, but that attorney can only represent and give legal advice to the person who hires them. You may not need to hire an attorney to actually represent you, but you do need your own attorney to explain your legal rights, explain how those rights apply to your fact situation, and review and explain any legal documents you have been asked to sign.