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. The process of divorce can be a very difficult time for both parties involved, as well as for any children you may have. So, solving your differences as easily as possible should definitely be an option worth considering if you can. Online Mediation can be a particularly useful service to utilize, as not only will you be resolving any differences that you have with your spouse, but you will be able to do it from the comfort of your own home, therefore reducing any stress and anxiety you may be experiencing as a whole. So, you should think about this if you want to remove yourself from a tense environment. Mediation can drastically cut down on costs, and more importantly can be a less stressful way of resolving a highly tense and difficult situation. Similar to this is religion, So many people find so much comfort in speaking to God through prayer. This may even be incorporated in mediation. Maybe the strength of faith may be able to repair a broken bond, depending on your situation. There are prayers for your troubles to be diminished, prayers for your husband to love you, prayers for your wife to love you, and simply praying for happiness and content to be returned to both your lives. Religion has more often than not been the glue that holds marriages together when they have broken.

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. If you find yourself in a situation where you feel that you need an attorney, a quick internet search for something like (divorce attorney in fort mill) should bring up plenty of options. 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).

Introduction: Divorce is a legal process that dissolves a marriage and addresses various legal, financial, and familial matters. In Texas, the divorce process involves specific steps, legal requirements, and considerations that spouses must navigate to achieve a fair and equitable resolution.

1. Filing for Divorce: The divorce process in Texas commences with one spouse filing a petition for divorce. The petitioner, the party initiating the divorce, outlines the grounds for divorce and requests relief regarding property division, spousal support, child custody, and other relevant matters. Texas is a “no-fault” divorce state, meaning that neither party needs to prove fault for the marriage’s breakdown. The most common ground for divorce is “insupportability,” reflecting a discord or conflict of personalities preventing any reasonable expectation of reconciliation.

2. Residency Requirements: To file for divorce in Texas, certain residency requirements must be met. At least one spouse must have been a resident of the state for a continuous six-month period immediately preceding the filing. Additionally, the spouse filing for divorce must have been a resident of the county where the petition is filed for the preceding 90 days. Meeting these residency requirements is essential to establish the court’s jurisdiction over the case.

3. Temporary Orders: After filing for divorce, parties may face immediate issues that require prompt resolution. Temporary orders are court-issued directives that address matters such as child custody, visitation, spousal support, and the use of marital property during the divorce proceedings. These orders provide a framework for the duration of the divorce process until a final resolution is reached.

Temporary orders are particularly crucial when children are involved, as they help ensure the children’s well-being and maintain stability during the divorce proceedings. Courts may issue temporary restraining orders to prevent one spouse from dissipating assets or taking actions that could harm the other party’s interests.

4. Discovery: Discovery is a crucial phase in the divorce process, during which both parties gather and exchange information relevant to the case. This includes financial documents, property records, and any other evidence that may impact the division of assets, spousal support, and child-related matters.

Discovery methods may include:

  • Interrogatories: Written questions that the opposing party must answer under oath.
  • Requests for Production: Demands for specific documents or tangible items.
  • Depositions: Sworn, out-of-court testimony of parties and witnesses, transcribed by a court reporter.

Thorough discovery is essential for ensuring a complete and accurate understanding of the marital estate and each party’s financial situation. It lays the foundation for informed negotiations and, if necessary, presentation of evidence in court.

5. Mediation and Settlement Negotiations: Texas encourages alternative dispute resolution methods, with mediation being a common approach in divorce cases. Mediation involves a neutral third party, the mediator, facilitating discussions between the spouses to reach a mutually agreeable settlement. The mediator does not make decisions but helps guide the parties toward resolution.

During mediation, spouses discuss various issues, including property division, spousal support, and child custody. The goal is to reach a comprehensive agreement that both parties find acceptable. Mediation can be a more cost-effective and less adversarial alternative to litigating divorce issues in court.

Settlement negotiations may also occur outside of formal mediation sessions, with attorneys representing the parties in discussions aimed at resolving contested matters. Achieving a settlement can lead to a more efficient and less emotionally taxing resolution of the divorce.

6. Court Proceedings: If the spouses are unable to reach a settlement through mediation or negotiation, the case proceeds to court. Court proceedings involve presenting evidence, witnesses, and legal arguments to the judge, who will make decisions on contested issues. The court’s involvement is a last resort when parties cannot agree on crucial matters.

The court may address various issues, including:

  • Property Division: Texas follows a community property system, where marital assets and debts are generally divided equally. The court considers factors such as the spouses’ respective earning capacities, contributions to the marriage, and any separate property claims.
  • Spousal Support: If one spouse requests spousal support (alimony), the court will consider factors such as the length of the marriage, each spouse’s financial resources, and the requesting spouse’s ability to support themselves.
  • Child Custody and Visitation: The court determines custody arrangements based on the best interests of the child. Factors include the child’s relationship with each parent, stability, and the ability of each parent to meet the child’s needs.
  • Child Support: Child support calculations are based on state guidelines that consider factors such as each parent’s income, the number of children, and any special needs or medical expenses.

7. Property Division: Texas employs a community property system, which means that marital property is generally divided equally between spouses. Community property includes assets and debts acquired during the marriage, while separate property remains the individual property of each spouse. The court considers various factors in determining a fair division of property.

Separate property may include assets owned by one spouse before the marriage, gifts, inheritances, and personal injury awards. Tracing and properly identifying separate property can be crucial to ensuring an equitable division.

In some cases, spouses may have complex property holdings, such as businesses or significant investments. Valuation of these assets and determining an equitable division may require the assistance of financial experts or forensic accountants.

8. Child Custody and Support: Child custody and support are central issues in many divorce cases, especially when minor children are involved. Texas law prioritizes the best interests of the child when determining custody arrangements. The court may award sole or joint custody based on factors such as the child’s relationship with each parent, stability, and the ability of each parent to provide for the child’s needs.

Child support calculations in Texas are guided by statutory guidelines. The noncustodial parent typically pays child support to the custodial parent. Factors considered in the calculation include the paying parent’s income, the number of children, health insurance costs, and any special needs or extraordinary expenses.

9. Finalization of Divorce: Once all contested issues are resolved—either through settlement or court determination—the court issues a final decree of divorce. This legal document outlines the terms of the divorce, including property division, spousal support, child custody arrangements, and child support obligations.

The final decree of divorce is a binding court order, and both parties are legally obligated to adhere to its terms. Failure to comply with court orders can result in enforcement actions and legal consequences.

10. Post-Divorce Matters: Even after the divorce is finalized, post-divorce matters may arise, requiring legal attention. These can include:

  • Enforcement of Court Orders: If one party fails to comply with the terms of the final decree, the other party may seek enforcement through the court. This can involve actions to collect unpaid child support, spousal support, or ensure compliance with custody arrangements.
  • Modification of Court Orders: Circumstances may change after the divorce, warranting modifications to child custody, visitation, or support orders. Common reasons for modification include changes in income, relocation, or significant life events affecting the child’s best interests.
  • Parental Relocation: If a custodial parent wishes to move with the child, Texas law may require court approval. The court considers factors such as the reason for the move, the impact on the child, and the noncustodial parent’s ability to maintain a relationship with the child.
  • Name Change: A divorced individual may choose to revert to their maiden name or adopt a different name. This process is typically included in the divorce decree but may require additional legal steps.

Conclusion: The divorce process in Texas is a multifaceted legal undertaking that involves various stages, from filing the initial petition to addressing post-divorce matters. Each divorce case is unique, and the outcome depends on the specific circumstances of the parties involved.

Navigating the complexities of divorce law in Texas requires a comprehensive understanding of legal principles, procedural requirements, and the ability to tailor legal strategies to the unique aspects of each case. Given the emotional and financial implications of divorce, seeking the guidance of a qualified family law attorney is essential.

A knowledgeable attorney can provide legal advice, advocate for your interests, and help you navigate the legal system. Whether through negotiation, mediation, or litigation, an attorney can work to achieve a fair and equitable resolution that aligns with your goals and protects your rights.

It’s important to recognize that divorce is not only a legal process but also an emotional one. Seeking support from professionals such as therapists or counselors can be beneficial in managing the emotional challenges that often accompany the divorce journey. By combining legal guidance with emotional support, individuals can work towards a more positive and constructive resolution of their divorce proceedings in the state of Texas.