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:
- Insupportability. Tex. Fam. Code Ann Section 3.01
- Living apart for three (3) years. Id. Section 3.06
- 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:
- CRUELTY. Id., Section 3.02.
- ADULTERY. Id., Section 3.03.
- RESPONDENT’s CONVICTION OF A FELONY OFFENSE. Id., Section 3.04.
- 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:
- fault in break up of the marriage;
- benefits the innocent spouse may have derived from the continuation of the marriage;
- disparity of earning power of the spouses and their ability to support themselves;
- health of the spouses;
- the spouse to whom conservatorship of the child(ren) is granted;
- needs of the child(ren) of the marriage;
- education and future employability of the spouses;
- community indebtedness and liabilities;
- tax consequences of the division of property;
- ages of the spouses;
- earning power, business opportunities, capacities, and abilities of the spouses;
- need for future support;
- nature of the property involved in the division;
- wasting of community assets by the spouses;
- credit for temporary support paid by a spouse;
- community funds used to purchase out of state property;
- gifts to or by a spouse during the marriage;
- increase in value of separate property through community efforts by time, talent, labor and effort;
- excessive community property gifts to the parties’ children;
- expected inheritance of a spouse;
- attorneys’ fees to be paid;
- creation of community property through the use of a spouse’s separate estate;
- the size and nature of the separate estates of the spouses;
- 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. This helps give the child a voice in the process, and such an interview is mandatory if the child is aged 12 or older, and the interview has been requested by a party to the case, the amicus attorney, the attorney ad litem for the child, or on the Court’s own motion. Tex.Fam.Code Section 153.009
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: Effective September 1, 2013, if the obligor’s net monthly resources exceed $8,550.00 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 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.” Percentages to be applied are:
- 1 child 20% of the Obligor’s Net Monthly Resources
- 2 children 25% of the Obligor’s Net Monthly Resources
- 3 children 30% of the Obligor’s Net Monthly Resources
- 4 children 35% of the Obligor’s Net Monthly Resources
- 5 children 40% of the Obligor’s Net Monthly Resources
- 6+ children Not less than the amount for 5 children
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
|number of other children
whom obligor has a duty to support
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 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 Texas Court award alimony?
A: Yes. Texas Courts can provide for alimony following a divorce IN LIMITED CIRCUMSTANCES, based on legislation that became effective September 1, 1995, Tex.Fam.Code Chapter 8. The Court must consider the duration of the marriage, each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage, the education and employability of the spouses, the duration of the marriage, the age, employment history, earning ability, and physical and emotional needs of each party, among other factors.
Q: How long can alimony last under the statute?
A: The Court may not order maintenance that remains in effect for more than five years after the date of the order if the spouses were married to one another for less than ten years. If the spouses were married for more than ten years, but less than 20 years, the Court can order alimony for up to five years. The Court may order alimony for up to seven years if the parties were married more than 20 years but less than 30 years. The Court may order alimony for up to ten years after the date of the alimony order if the spouses were married 30 years or more. Tex.Fam.Code Section 8.054.
Q: How much can be ordered for alimony payments?
A: The Court may not order alimony more than the lesser of (1) $5,000 monthly or (2) 20% of the obligor’s gross monthly income. Tex.Fam.Code Section 8.055.
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. However, the Texas Court reserves the right to assure that the name change is not being sought to evade criminal prosecution or to elude creditors, and may ask that the person seeking the name change take the appropriate steps to assuage the Court’s concerns in this regard, including preparing and filing a supporting affidavit, and obtaining a fingerprint card from an authorized agency.
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