Frequently Asked Questions about Divorce and Family Law
(Please
note: The following FAQs apply only in the State of Texas. Please see
our disclaimer on the "Contact Jack Riley" page.)
1. Does it matter who files the divorce first?
Yes.
There are very slight procedural advantages to filing first: for one
thing, the person who brings the case first gets to talk first, and
sometimes first impressions are lasting impressions.
2. 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.
3. 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. Other
courts are slower.
4. 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 orders
are necessary, whether a trial is necessary, whether discovery is
conducted, and how reasonable your spouse and your spouse's attorney
are (or aren't) throughout the process.
5. My ex-spouse is
paying too little child support for how much he or she makes, so can I
get the amount of child support increased?
To modify the amount
of child support (either to increase or decrease the amount ordered),
one of two things must be proven in court: either, a) you can 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, and so whether the child support can be
modified becomes primarily a question of math.
6. At what age can a child decide with whom they want 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 about who the child wants to primarily live with 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 on the court 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).
7. 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 pretty 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 there represented
to others that they were married.
If you are common law
married and you 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.
8. Why do lawyers require up-front retainer fees?
Short
answer, to make sure they get paid. Lawyers practice law because they
like the challenge and 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 attorney is compensated for his or her
efforts.
9. 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 some 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.
10. Can I get alimony?
Although
getting temporary spousal support (while the divorce is pending) is
common, it is more difficult to get post-divorce alimony. However, you
can get post-divorce alimony if you qualify. There are several factors
involved which would need to be discussed with you.
11. Do grandparents have rights in Texas?
Although
the state of the law in this area is somewhat in flux as the U.S.
Supreme Court struck 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 under certain unusual circumstances.
12. What are the mechanics of an action for Divorce?
Please click on the "Divorce Process" button at left for the answer to this question.
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