Divorce

 

Divorce FAQ

Whether you have a simple divorce, or a complex one, it is always a prudent idea to consult a lawyer before taking any action. Often people find that without a lawyer, their seemingly simple divorce becomes complex, and with a lawyer, their seemingly complex divorce becomes much simpler.

Whether you have been served with divorce papers, or you are considering divorce yourself, the process can be traumatizing and more than many people can deal with. If children are involved, the situation is even more difficult. One of the important determinations to make when discussing a divorce with a client is whether or not various forms of alternative dispute resolution might be appropriate for their situation. People are often surprised to find out that even if their divorce is highly contested, it can still be resolved through mediation, or other forms of dispute resolution. This can drastically cut down on costs, and more importantly can be a less stressful way of resolving a highly tense and difficult situation

 

Can I represent myself?

Yes. Everyone retains the right to represent themselves at any time. In fact, I often get calls from people who think that they need an attorney, and I am able to direct them in being able to represent themselves on their own in a very short amount of time. Some issues, however, are very difficult to deal with without an attorney. In general, issues dealing with children tend to be complicated, and additionally dealing with large estates can be legally complicated as well. Finally, in almost any situation where the divorce is contested, and/or the other party has already retained an attorney, it is vital to at the very least speak with an attorney to understand the situation better.

 

Do I need to get a divorce?

I am often surprised how often I get this question. The answer is almost always yes, even if you don’t ever plan on remarrying again. In a situation where you in opposition to your spouse, it is important to avoid that spouse causing problems for you. In a situation where you are aligned with your spouse, it tends to be a fairly easy process. If you have an informal marriage (often called common-law marriage), you STILL need to get a formal divorce. Common-law marriage means:

1. You and your husband or wife agreed to be married

2. You and your husband or wife lived together in Texas

3. You and your husband acted like you were married

 

What if we got married in a different state or country?

Marriages obtained elsewhere are still valid in the Unites States, and Texas. You would still be required to get a divorce, but fortunately, regardless of where you were married, you can file for divorce in Texas if either you or your spouse have been Texas residents for at least 6 months.

 

What is “no-fault” divorce?

Often people think there needs to be a specific reason, or “fault” to divorce their spouse such as abuse or adultery. This is not the case.  There does not need to be any “fault” to file for divorce, simply one of you needs to believe that the relationship cannot be fixed.

 

What are other “grounds” for divorce?

If you feel as though the divorce is the fault of the other spouse there are a number of grounds you can ask the court for: adultery, cruelty, abandonment (greater than one year), felony conviction (greater than one year served, similar to abandonment), living apart (greater than 3 years), committed to a mental institution (greater than 3 years with little to no hope of recovery)

In these situations, the court has leeway to award more of the community property to the innocent spouse.

 

Is there legal separation in Texas?

No, although there can be temporary order hearings to ensure everything goes smoothly in the interim.

 

How long does it take to get a divorce in Texas?

There is a 60 day minimum waiting period from the time you file until when the court can make final orders. Even in an uncontested divorce, this period cannot be waived. In a contested divorce, the process can and often does take significantly longer depending on the complexity of the case and opposing counsel.

 

What does a divorce do?

A final order in a divorce proceeding can do a number of things: Dissolve your marriage, divide community property (or debt), determines child custody, determines child visitation, determines child support, change your name (back to your maiden name), restraining orders if necessary, and alimony (maintenance in Texas) in rare circumstances.

 

Can I get alimony?

As previously stated, alimony in Texas is called maintenance and it is very rare. There are two main ways of going about asking for it. The first is to be married for a period of longer than 10 years and the spouse asking for alimony is not able to support him or herself. The second way is that one of the spouses is convicted of domestic violence within 2 years of the divorce being filed. In both situations, even if one of those things are met, it is still difficult to convince the court to order, and it is only good for three years. The court will also take into account the income and assets of both people as well.

 

What happens to our stuff?

This issue can potentially get complex and it is important to talk to an attorney about the specific facts in your case before basing any opinions. For the most part, the court will divide divide the property that was obtained during the marriage (community property) unless it is the separate property of one spouse. Separate property is anything that you owned prior to marriage and property you obtained during the marriage by gift or inheritance. Most everything else is fair game for the court to divide if there is not an agreement. It is usually good to agree to the things that can be agreed on beforehand rather than fighting over each item, especially if you represented by an attorney. Spending potentially two different attorneys fees on arguing over low value items sometimes becomes cost prohibitive and inefficient. Again, it is important to explain your specific facts to your attorney and let him or her know what things are most important to YOU. Each case is different, and this is an area where proper communication is vital.

 

Can the court order a name change?

The court can restore a parties prior name or correct mistakes on a child’s birth record, though name changes unrelated to these things must be done differently.

 

Can my health insurance coverage continue to cover my children or spouse after my divorce?

Some laws allow people to continue receiving health insurance coverage in these situations after divorce (COBRA). You must notify the insurance company ans speak with them about their policies in this regard. Payments must still be made, though this is something that can be ordered by a judge to be done as well depending on the situation. This is another situation where it is important to speak to your lawyer to let him or her know you are concerned about loss of health insurance coverage, as once it gets cut off, it may not be possible to get it back.

 

Can I get part of my spouse’s military retirement of civilian pension?

Sometimes. Again, let your lawyer know that this may be an issue so that they can look into the specific details of your case. It is not something that can be done after the divorce is finalized so make sure you deal with it sooner rather than later.

 

What can I do if my spouse is abusive?

There are many laws to protect victims of family violence whether or not they want to get a divorce from their partner. If a divorce is already filed, a judge can help you make orders in that cause number. If a divorce hasn’t already started, you can file for a “protective order” if you fear for your safety or that of your children. The county attorneys office may be able to assist you in this process free of charge. Your nearest Legal Aid office may also be able to help you to obtain this protective order as well. To get more information about potential shelters and what the next step for you should be, please call the national hotline for domestic violence at 1-(800)-799-SAFE (7233).

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Timothy Hutton

Divorce and Custody Lawyer at Hutton Law, PLLC
Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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