Frequently Asked Questions:

Q:  How long must a divorce be on file in Texas in order to be finalized?
A:  In Texas, the court may not grant a divorce “before the 60th day after the date the suit was filed.”  Tex.Fam.  Code Section 6.702(a)

Q:  On what grounds may a “no fault” divorce be filed?
A:   In Texas divorce may be granted on any of three NO‑FAULT grounds:

(1)  Insupportability.  Tex. Fam. Code Ann Section 3.01

(2)  Living apart for three (3) years.  Id. Section 3.06

(3)  The Respondent's confinement in a mental institution for three (3) years.  Id. Section 3.07

Q:  Can one obtain a divorce on a “fault” ground in Texas?
A:  Yes.  While most divorces are granted on "no‑fault" grounds, due to the fact that the parties allege that the marriage has become insupportable due to a conflict of personalities that destroys the legitimate ends of the marital relationship, a divorce may also be granted on the following FAULT bases:

(a)  CRUELTY.  Id., Section 3.02.

(b)  ADULTERY.  Id., Section 3.03.

(c)  RESPONDENT's CONVICTION OF A FELONY OFFENSE.  Id., Section 3.04.

(d)  RESPONDENT's ABANDONMENT OF PETITIONER FOR ONE YEAR.  Id., Section 3.05.

Q:  In Texas, are there reasons why one party may be awarded a disproportionate share of the parties' estate for many reasons?
A:  Yes, including but not limited to the following:

1. fault in break‑up of the marriage;
2. benefits the innocent spouse may have derived from the continuation of the marriage;
3. disparity of earning power of the spouses and their ability to support themselves;
4. health of the spouses;
5. the spouse to whom conservatorship of the child(ren) is granted;
6. needs of the child(ren) of the marriage;
7. education and future employability of the spouses;
8. community indebtedness and liabilities;
9. tax consequences of the division of property;
10. ages of the spouses;
11. earning power, business opportunities, capacities, and abilities of the spouses;
12. need for future support;
13. nature of the property involved in the division;
14. wasting of community assets by the spouses;
15. credit for temporary support paid by a spouse;
16. community funds used to purchase out‑of‑state property;
17. gifts to or by a spouse during the marriage;
18. increase in value of separate property through community efforts by time, talent, labor and effort;
19. excessive community property gifts to the parties' children;
20. reimbursement;
21. expected inheritance of a spouse;
22. attorneys' fees to be paid;
23. creation of community property through the use of a spouse's separate estate;
24. the size and nature of the separate estates of the spouses;
25. creation of community property by the efforts or lack thereof of the spouses.

Q:  In Texas, do parties to a divorce have the right to a trial by jury?
A:  Yes, either party may demand a jury trial unless the action is a suit to annul an underage marriage.  Tex.Fam.Code Section 6.703.

Q:  Does a child over the age of 12 have the right to help determine with whom they will live?
A:  Yes.  However, effective September 1, 2009, a child aged 12 or older may no longer file a Choice of Managing Conservator form with the Court designating their choice as to who should serve as the child’s managing conservator.   Instead, it will be possible to file a motion with the Court to allow the Court to interview the child, in chambers, after proper notice and hearing.   Tex.Fam.Code Section 153.008

Q:  What is the Court governed by in making a custody determination in Texas?
A:  The best interest of the child.  Tex.Fam.Code Section 153.002

Q:  How does a Texas Court establish child support?
A:  If the obligor's net monthly resources exceed $6,000.00 per month, the Trial Court must determine if the child requires a straight percentage according to the foregoing guidelines, or if doing so would maintain the spouse seeking custody in a style to which they have become accustomed, as opposed to being necessary to maintain the child.  In the Rodriguez (36 TSCJ 90), the Texas Supreme Court recently held that "additional" child support awarded from an obligor's income that exceeds $4,000.00 per month (the "cap" on the application of the percentages provided for in the child support guidelines until August 31, 1993) must be based SOLELY on the needs of the child at the time of the order.  As the court notes:  "We therefore conclude that 'needs of the child' includes more than the bare necessities of life, but is not determined by the parents' ability to pay or the lifestyle of the family.  In determining the needs of the child, we direct courts to continue to follow the paramount guiding principle:  the best interest of the child."  Legislation passed amending the Texas Family Code, effective September 1, 2007, raising the application of the guidelines to a cap of cap from $6,000.00 per month in net monthly resources to application of the guidelines to the sum of $7,500.00 per month.  
     
Q:  Do the Texas Child Support Guidelines vary if a payor has other children?
A:  Yes.  Consider that a husband was previously married – let’s call him Jim.  He was previously divorced, and ordered to support his two children from that first marriage pursuant to a divorce decree.  Should that have any impact on you?  Yes, according to Texas Family Code Section 154.129, which provides for an alternative method of computing child support for children in more than one household.  Rather than using the figures set out above for calculating support, the court may determine the child support amount for your children by applying the percentages in the table below to the obligor's net resources:

       MULTIPLE FAMILY ADJUSTED GUIDELINES OF NET RESOURCES:
      
                                              Number of Children Before the Court
                           1              2              3              4            5               6           7
      
0  # of                20.00      25.00      30.00      35.00      40.00       40.00      40.00
1  other              17.50      22.50      27.38      32.20      37.33       37.71      38.00
2  children          16.00      20.63      25.20      30.33      35.43       36.00      36.44
3  whom the       14.75      19.00      24.00      29.00      34.00       34.67      35.20
4  obligor           13.60      18.33      23.14      28.00      32.89       33.60      34.18
5  has                 13.33      17.86      22.50      27.22      32.00       32.73      33.33
6  a duty            13.14      17.50      22.00      26.60      31.27       32.00      32.62
7  of support:     13.00      17.22      21.60      26.09      30.67       31.38      32.00
      
       In the foregoing example, if you and Jim have two children, Jim's base child support obligation to you would be 20.63% of his net monthly resources.       

Q:  Is there such a thing as an economic contribution claim?
A:  Effective September 1, 2009, the statute allowing for an economic contribution claim will be repealed.  So, we will revert to applicable case precedents when it comes to claims by one estate against another (for instance, where a person used separate property to pay secured debts owed by the community estate).

Q:  Is there the possibility of making a reimbursement claim?
A:  Effective September 1, 2009, the statute that defines and allows for reimbursement claims – payment by one marital estate for the unsecured liabilities of another estate, and/or inadequate compensation for the time, toil, talent and effort of a spouse by a business entity under the control and direction of that spouse.  See Texas Family Code Section 3.402 (a-e).                 
                                  
Q:  May a spouse receive alimony?  And for how long?
A:  Spousal support law continues to evolve in Texas; but like the hot, dry summer days which seem to creep along, the process moves slowly.

Governor Rick Perry signed HB 901 on June 17, 2011. The law is effective for divorce cases filed on or after September 1, 2011. In 1995, Texas was the 50th state to pass a law providing for spousal support and has been one of the most restrictive in the nation.

The new law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.

Major changes to the spousal support law are:

1. The maximum amount of spousal support that courts may award increases from $2,500 to $5,000.00 per month, although still limited to 20 percent of the payer’s average gross monthly income.
2. The duration of spousal support is extended from a maximum of 3 years to a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.
3. The law clarifies that if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.
4. The law also clarifies that a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.

In order to receive "maintenance," (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s "minimum reasonable needs", AND one of the following:

(1)  The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;
(2)  The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;
(3)  The recipient is the custodian of a child of the marriage of any age who required substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR
(4)  The person ordered to pay support must have been convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

(1)  5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;
(2)  5 years if the parties were married more than 10 years, but less than 20 years.
(3)  7 years if the parties were married more than 20 years, but less than 30 years;
(4)  10 years if the parties were married for more than 30 years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.

Q:  What might a divorce or modification cost?
A:  The legal fee will vary with the services you require, and our charges will be based upon the amount of time the attorney or legal assistant expends on your case.  These hourly charges are set forth in our contract for legal services.  Our basic divorce services include our initial conference;  the preparation and filing of the petition (or the review of the petition filed by your spouse); and preparation of a waiver to be filed by your spouse or arranging for the sheriff or constable to serve your spouse with a copy of the petition; obtaining information from you concerning your assets, liabilities, income and expenses and making recommendations concerning property division and support; routine settlement negotiations with your spouse's attorney; preparation or review of property settlement and support agreement; preparation of discovery requests and discovery responses; preparation or review of divorce decree; preparation or review of forms required by the Texas Bureau of Vital Statistics; and court appearances.  Your legal fees, of course, will be appropriate to the complexity of, and the contested issues involved in, your case.  Please note that fees are charged for personal and telephone conferences, negotiations, other telephone calls (especially at home), complicated tax planning and advice (such as alimony arrangements), and for all other attorney and legal assistant time expended in your behalf.

Q:  One Lawyer for Both Parties?
A:  It is neither practical nor ethical for a lawyer to represent competing interests.  In the context of divorce, the presumption of fiduciary duty that otherwise attends spouses is compromised; as interests are inherently competing, each party should have independent counsel.

Q:  May a party obtain a name change as part of a divorce?
A:  Yes.  A wife's former name may be returned to her as part of the final decree at no additional charge.  We generally suggest that this be limited to the restoration of the maiden name when there are no children, or to the restoration of a former married name when there are children of that earlier marriage.  However, the mere fact that there are children born to the union does not thwart the desire to have a name change.