Matrimonial Issues FAQs
Q: How long does it take to get a divorce?
A: If the spouses have reached an agreement on all of the relevant issues, a divorce may be obtained on the 61st day after the divorce petition was filed. If an agreement is not possible and the case must be tried, the length of time is primarily dependent on the Court’s docket. In Harris County, most divorce cases are set for trial within six to twelve months after the divorce petition is filed.
Q: Do I need a “legal separation” from my spouse?
A: While some states recognize a legal status known as “legal separation,” Texas does not. Under the Texas Family Code spouses are married until the Court grants a divorce.
Q: Where can I file for divorce?
A: You can file for divorce in a county in which either you or your spouse has lived for at least 90 days, as long as that same person has lived in Texas for at least six months.
Q: How is property divided between spouses in a divorce?
A: The Texas Family Code requires that the Court divide the community property of the spouses “in a manner that the Court deems just and right.” This means the Court is not required to divide the property 50-50 and can consider a variety of factors in deciding what is “just and right.” These factors can include fault in the divorce, disparity in earning power, disparity in amount of separate property, etc.
Q: What is the difference between separate and community property?
A: Generally, a spouse’s separate property is property that was either:
- owned by the spouse before marriage
- acquired by gift or inheritance, or
- certain kinds of recoveries for personal injuries
- Community property is all property other than separate property. All property owned by either spouse during the time of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.
Q: How is child support calculated?
A: In most cases, child support is calculated using a formula in the Texas Family Code. The payor’s monthly “net resources” (a term defined by statute) is multiplied by a percentage which is determined by the number of children at issue (e.g., the percentage for one child would be 20%). The payor is entitled to a reduction if he or she is also responsible for the support of another child.
Q: What is “standard” visitation?
A: Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) a “Standard Possession Order” for visitation. The visitation is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce. A very short hand version of a typical visitation order (assuming both spouses reside within 100 miles) is as follows: the 1st, 3rd, and 5th Friday of every month from Friday (beginning at either school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m., every Thursday beginning at either school dismissal or 6:00 p.m. and ending either at 8:00 p.m. that night or when school resumes the following morning), as well as 30 days in the Summer, and additional visitation periods for Spring Break, Thanksgiving, and Christmas, depending on whether it an odd or even numbered year. While the Standard Possession Order is the most common visitation schedule, it may be inappropriate depending on the particular case. You should consult with your attorney to determine whether or not a Standard Possession Order should be applied in your case.
Q: How does a court decide which parent will get custody of a child?
A: When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court considers:
- The child’s age;
- The child’s gender;
- The child’s physical and mental health;
- The parents’ physical and mental health;
- The parents’ lifestyles;
- Any history of abuse;
- The emotional bonds between the parent and the child;
- The parent’s ability to give the child guidance;
- The parent’s ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
- The child’s routines, including home, school, community, and religious;
- The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
- If the child is above a certain age, the child’s preference.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker. Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded.
Q: What are temporary orders?
A: Temporary orders are orders issued by a court, after either a hearing or an agreement by the parties, which are designed to last until the divorce is final. Practitioners sometimes refer to them as “band aid” orders. Temporary orders commonly address issues such as child support, custody and visitation of the children, exclusive use of the marital residence, exclusive use of vehicles, alimony, and interim attorneys fees.
Q: If my spouse and I have agreed to all the relevant terms, what is the general procedure for obtaining and finalizing the divorce?
A: It is common for spouses to believe that they have an agreement, but they actually have not addressed all the necessary terms, such as child custody or support, or property division. Assuming all required terms are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. The attorney for the Petitioner (the filing spouse) files the divorce petition and either has the petition served on the other spouse or the other spouse executes a Waiver of Service. The Petitioner’s attorney then drafts an Agreed Final Decree of Divorce and any other necessary documents which are reviewed and signed by the other spouse. The other spouse is free to hire or consult with an attorney of his or her own. After the necessary papers are signed by the parties and attorneys, the Petitioner and his attorney then go to court for a hearing to have the Court enter the Decree and other documents.
Q: Do I have to show fault to get a divorce?
A: Texas is a no-fault divorce state which means that it is not necessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation. However, many fault issues (adultery, cruelty, etc.) are frequently relevant factors in divorce cases because they can have an impact on how the community property is divided, or how custody is decided.
Q: What Is “mediation”?
A: Mediation is a voluntary process which allows both you and your spouse to maintain control over your destiny and the terms of your divorce settlement. Both parties and attorneys attend either a four-hour or eight-hour mediation session, depending on the complexity of your case.
Q: What Is the role Of A mediator?
A: The role of the mediator is to facilitate an agreement between the parties to prevent the necessity for a trial.
Q: Is The Mediator A Lawyer?
A: Although some mediators are social workers, most commonly the mediator is a lawyer who acts as a neutral person to help you settle your case.
Q: How is a mediator get chosen?
A:The mediator is chosen and agreed upon by the attorneys. Every Family Law attorney has a “short list” of competent mediators who specialize in family law with whom we are familiar, whose style we are comfortable with, and who we have found to be effective, particularly considering the individual aspects of your specific case.