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Divorce FAQ: A Divorce Guide

Answers to Common Questions About Getting Divorced in Texas

This guide is only to cover some of the most basic information about getting divorce. For additional information, please make an appointment with our office. If you need a local and experienced divorce attorney who represents people throughout Texas, call now!
  • What is a Divorce?

    Divorce is a legal procedure to end a legal marriage relationship. It is available in traditional marriages as well as common-law marriages.

  • Where Does My Divorce Case Get Filed?

    Your divorce must be filed in a court that has jurisdiction over all the parties. Usually, this will be a court in the County where both of you live. If you live in different counties, your attorney can determine where to file the case, unless there is children. When there are children, the case must be filed in the county where the children reside. Also, if you have a court order in effect regarding the child (May with the attorney general), the court where that was filed has jurisdiction and may need to be transferred to the new county where the children reside.

    You must be a resident of Texas for the last 6 months and a resident of the county where you want to file your case for the last 90 days.

    * If you live in different counties most of the people we work with prefer to file their case first, before the other spouse does so you can attempt to avoid having your case handled in another county far away.

  • What Do I File to Begin My Divorce Case?

    Every divorce case begins with a formal pleading titled “Original Petition for Divorce.” The initial pleading must contain enough information to establish that the court where you file it has jurisdiction over the case and the parties involved. In addition it must include a request for the relief that you are asking from the court as well as the basis for that relief. If you leave something out on the Original Petition and need to correct it later on you may be forced to re-serve the petition on the other party.

  • What If There Are Mistakes in My Original Petition?
    The Original Petition for Divorce is an important pleading because it puts the other party on notice concerning which claims you are making and the relief you are seeking. If you leave something out of the Original Petition then the judge may not allow you to argue a specific claim or present evidence on an issue. Do it right the first time.
  • What Are the Filing and Other Fees?

    The filing fee is determined by the county in which you for a divorce. Most of the fees can be found by going online to the county website under the district clerk tab. In addition, you will have to pay the process servers fee to complete service of process which varies with the person you choose, but is generally $75. If you request a temporary restraining order with your divorce petition the filing fee is $284.

  • Do I Need an Attorney?

    You are not required to have an attorney protect your rights and interests in a divorce case.

    Many people end up finding some of the advantages to having an attorney are:

    • Getting on the court’s docket faster while pro se trials are currently set about 1 year from filing according to Judge Gilbert of the 418th District Court.
    • Having everything in acceptable form when you do need the court to rule on the divorce or a pretrial motion. Judge Gilbert recently revealed he refuses approximately 50% of the self-represented divorce decrees that people ask him to grant because they do not meet the legal requirements of enforceability.
    • Protecting rights you may not even know you had (Is the child support figure accurate? Are you in a position to enforce a breach of the divorce settlement? Are you walking away from property that you have a legal right to? Is all of the community property divided in the decree? Is Alimony correctly determined?)
  • Can One Attorney Represent Both of Us, If We Agree?
    No. One attorney can never represent both parties to a divorce, even if you agree. A divorce is litigation where one spouse is suing the other spouse to divide property and determine legal rights and responsibilities towards each other and children. An attorney representing both sides in a divorce would be the same as representing Coke and Pepsi in a lawsuit between the two companies.
  • I've Been Served with Divorce Papers, What Now?
    If your spouse had you served with his or her divorce petition it is critical that you and your attorney file a written Answer to the petition within the deadline, usually the Monday following 20 days after you are served. If you do not file a valid Answer before the deadline, then your spouse may obtain a default judgment against you and the judge may decide on your case without ever hearing your side. The clock is ticking once you are served; contact Carl & Tavel immediately so we can begin to prepare your case.
  • What If We Are Already Separated?
    That is great, but it does not mean much in a Texas divorce court. You may be living separately for 2 months or 20 years but the State of Texas does not recognize legal separation in any form. All the property and income you’ve accumulated during the time you believed you were separated can be brought into the final property division as presumed community property.
  • How Long Will It Take Before My Divorce Is Final?

    There is a minimum 60 day waiting period from the date of filing before a divorce can be finalized in Texas. In a simple divorce where there are absolutely no disputed issues or unusual circumstances that need to be addressed a divorce can be finalized on the 61st day if the court has room on its docket. However, very few divorces are finalized on the 61st day. If children are involved, or as the amount of property that has to be divided increases it generally takes longer to reach a settlement agreement. If you intend to go to trial, you will generally not receive a trial date until 6 months after your case was filed. In addition, there may be delays due to discovery or other issues that develop during the course of your case.

  • What Is an Uncontested Divorce?

    An uncontested divorce is generally used when the parties have already maintained separate residences for some time and divided property. If there is any negotiation remaining that you need your attorney to be involved in then your case probably does not qualify as uncontested.

  • What Is a Collaborative Divorce?

    A collaborative divorce is not the same as an uncontested divorce and is generally only used when the parties need to maintain a parenting relationship with each other after the divorce is final, there are complicated business assets that need to be divided, or both parties want to maintain their family's’ privacy. Collaborative divorce is a process through which you and your spouse, and each of your attorneys, commit themselves to resolving all issues of the divorce by negotiated agreement without resorting, or threatening to resort, to costly court proceedings. Collaborative divorce uses informal methods such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals such as accountants, financial planners and family counselors.

  • What Is a Contested or Litigated Divorce?

    A contested divorce does not mean one party objects to getting the divorce. In almost all contested divorces both parties want a divorce, but they have not resolved the vital issues of custody, support, and property division. One quick way to tell if your case is contested is if your spouse had you served with a divorce complaint then odds are your divorce is contested.

  • What Is Community Property?

    Community property consists of the property, other than separate property, acquired by either spouse during marriage.

  • When Does Community Property End?

    Texas is one of the few states left that continues to presume all property acquired up until the day the judge orders the divorce as community property. That means even after one of you has filed divorce and your case is proceeding the court still presumes any property you acquire is community property and subject to division in the final divorce. Spouses may also set aside all or part of their community property as separate property by partition or exchange agreement.

  • What Is Waste of Community Property?

    One common area of dispute during a divorce is if one spouse “wasted” community property and should therefore be penalized for that waste in the final property division. The legal requirement for “waste” requires disposal of community assets for non-community purposes or transfer of assets outside of the community. For example, gifts to a new girlfriend or boyfriend or even family member. Those are transfers of assets that remove community property from the estate. A court recently confirmed that it is not “waste” when one party to a divorce makes large purchases during the divorce because the purchases remain community property and subject to division as part of the divorce. A party making such purchases may be guilty of other things, but “waste” is likely not one of them.

  • What Is Separate Property?

    Separate property consists of (1) the property owned or claimed by a spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage. This is it for separate property. If you have an item that does not fit into one of those categories then you probably cannot protect it as separate property. Depending on the facts, there may be other strategies available to protect the value of the property.

  • How Much Child Support Is Required?

    Child support is determined by first discovering what the parent paying child support’s “net resources” are. “Net resources” is a legal term with a very specific meaning and is generally the center point of disputes concerning child support.

    Once the net resources are determined, the statutory guidelines set the following percentages as presumed reasonable:

    • 1 child = 20%
    • 2 children = 25%
    • 3 children = 30%
    • 4 children = 35%
    • 5 children = 40%

    Click here to Texas Family Code Chapter 154 regarding child support.

    Child support will only be ordered on a child until they graduate from high school or turn 18 years of age, whichever is later. Only by Agreement can you get child support to be paid while the child is in college or some other date in the future.

  • How Does Child Support Work for High Income Parents?
    The guidelines above only apply to the first $7,500 of monthly net resources in the case of a high income parent. The amount of child support applied on the amount above $7,500.00 is based on many different factors and the evidence available in your case.
  • How Does Child Support for Disabled Children Work?

    Child support usually ends when the child reaches 18 or finishes high school. However, if a child is disabled and meets certain legal and factual criteria, the court can order child support for as long as is necessary, and even indefinitely.

  • Am I Eligible for Spousal Maintenance?

    In order to be eligible for spousal maintenance the marriage must have lasted at least 10 years. If your marriage did not last 10 years, the court does not have authority to grant spousal maintenance. The Court uses this law to follow for maintenance.

    Even if your marriage did not last 10 years, you may be eligible for temporary spousal maintenance while the case is pending.

  • What Are Temporary Orders?

    Temporary orders are the rules for what each spouse can and cannot do while the case is pending. Temporary orders may include a restraining order, child support, spousal support, payment of legal fees, and other court orders designed to protect property and maintain the status quo. Montgomery County has standing orders that automatically go into effect when a case is filed. It is usually set by the court about two to three weeks after the case has been filed.

  • What Is the Standard Possession Order?

    The Standard Possession Order is visitation schedule that is followed by most courts. The Standard Possession Order only applies to children age 3 or older. The possessory conservator has the choice of whether to have possession of the child(ren) from 6pm on the 1, 3, or 5th Fridays of a month or have an extended possession of the child(ren) from Friday when school is dismissed on the 1, 3 or 5th Fridays of a month until school resumes on the following Monday. This election must be made at the time the orders are entered with the court.

  • What Is Visitation for Children Younger Than 3?

    In the case of a child younger than 3 years old, the judge is responsible for entering a visitation order that is appropriate based on:

    • The age, developmental status, circumstances, needs, and best interest of the child;
    • The circumstances of the managing conservator and of the parent named as a possessory conservator; and
    • Any other relevant factor.
  • Can We Modify the Standard Possession Order?

    Yes, you can; however, it is your responsibility to convince the judge that the modifications are in the child’s best interests. It may seem logical that splitting time between both parents is in the child’s best interests but the judges are familiar and comfortable with the Standard Order. Generally, the only time you can obtain a modified possession order is by agreement of the parties through mediation.

  • What Is Discovery?

    Discovery is a pre-trial process used to gather information from the other spouse and 3rd parties. Usually this is focused on obtaining information about assets but it can also be used to pursue information on other issues such as adultery.

  • How Are Retirement Accounts Like 401(K)s Handled?

    Retirement accounts such as 401(k)s are subject to the community property and separate property rules just like any other asset. Just because it is in one spouse’s name does not mean they own 100% of it and it is not community property. Dividing retirement accounts and 401(k)s are generally done through a Qualified Domestic Relations Order (QDRO).

  • How Are Student Loans Handled?

    Student loan debt is generally treated the same way as property. This means that if the loans were incurred before marriage it is likely, not guaranteed, that the judge will treat the debt as separate debt. If the loans were incurred during the marriage, then it is likely the judge will treat the debt as community debt and it is subject to allocation between both parties.

  • How Much Does It Cost?

    We currently use the following fee schedule at the time this book was published; however, rates are subject to change in the future:

    • Uncontested Divorce with No Property, No Debt, and No Children: $1500 + filing fees
    • Uncontested Divorce with Property, Debt, or Children: $2,500 + filing fees
    • Litigated Divorce ($3,000.00 Retainer Required): $250/hour
  • Will I Have to Go to Court?

    In the end, everyone has to go to court at least once for the final hearing at a minimum. If you end up in a litigated divorce then you will have to go to court many more times than that.

  • What About My Privacy?

    Divorces are heard in a public courtroom and are part of public record. If you want to protect your privacy, consider a collaborative divorce.

  • Is Counseling Required?

    Most Texas judges do require parental counseling before a divorce is granted when children are involved. This is not marriage counseling to try to reconcile the marriage relationship. It is a short course taught by professionals that addresses some of the common issues with how divorce affects children. If you do not have any children involved in your divorce then no counseling is automatically required, although the judge does have authority to order counseling if they choose to.

  • What Information or Documents Will I Need?

    Each case requires different documents. At a minimum you will need:

    • Your two most recent paystubs;
    • Your two most recent income tax returns;
    • The most recent statements for all accounts you own;
    • The deeds for any real estate;
    • The most recent statements for any debts that you owe;
    • A list of your monthly expenses that is as accurate as possible.

    You do not have to have this information ready to begin your case, but you will need to provide it within the first 30 days after your case is filed.

  • What Is Mediation?

    Many courts require mediation prior to Temporary Hearings and prior to Final Hearings.

    The term "mediation" broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable, and dynamics that "ordinary" negotiation lacks. Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community, and family matters. The process is private and confidential, possibly enforced by law. Participation is typically voluntary.

    The mediator acts as a neutral third party and facilitates rather than directs the process. Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice gained popularity, training programs, certifications, and licensing followed, producing trained, professional mediators committed to the discipline. If you make an agreement with the other party and the mediator reduces the agreement to writing and all parties sign it, (MSA), it is a done deal and you cannot come back and make changes.

  • What Are the Benefits of Mediation?

    The benefits of mediation include:

    • Cost: While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.

    • Confidentiality: While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

    • Control: Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

    • Compliance: Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

    • Mutuality: Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to "move" their position. The parties thus are more amenable to understanding the other party's side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

    • Support: Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think "outside of the box" for possible solutions to the dispute, broadening the range of possible solutions.

  • What Are Parenting Classes?
    Most of the courts in Texas require a parenting class. Each County has a list of providers that they prefer the parents to use. Some counties allow online courses and other counties will only allow in class courses. Your attorney will inform you as to which course to take. These courses are designed to help the parents understand how to treat and respect the children during the divorce proceedings and after.

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