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Divorce Lawyer's
Frequently Asked Questions - 20 Questions
I.
May
I Withhold Visitation because my Spouse will not pay child
support?
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No.
Not ever. If you withhold visitation because a spouse will
not pay his or her child support, you are taking the law
into your own hands and may be held in contempt of court. |
II.
May
I Stop Paying Child Support because my Spouse will not give me
my visitation and access?
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No. Not
ever. For the same reasons as in question one above, if you
withhold child support because a spouse will not allow you
to exercise your visitation you are taking the law into your
own hands and may be held in contempt of court. |
III.
What
Are the Mechanics of an Action for Divorce?
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An action
for dissolution of marriage, or a divorce, is a lawsuit
brought by one spouse against the other.
It starts by filing a Original Petition for Divorce.
A petition is nothing more than a letter drafted and couched
in legal terms written to the court telling the court what
that person wants. A
petition is answered by either Original Answer or Answer and
Counter-Petition. Similar
to the Original Petition, the Answer or Counter-Petition is
a document which tells the Court what that person wants.
See
Divorce Process.
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IV.
Does
it Matter Who Brings the Action?
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The person
who brings the case first gets to talk first. Some lawyers
swear that there is an advantage to being first. Others say
it doesn’t really matter. There is no negative connotation
attributable to the spouse who brings the action or to the
person who responds to the action. However, as one lawyer
said, "first
impression are lasting impressions."
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If family
violence has been a part of your life, you need to take
action. It is more credible for a victim of family violence
to bring the action first.
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V.
What
Percentage of Cases are Settled Versus Tried to the Court?
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Nearly all
of them. It is
the policy of the State of Texas that parties are to try and
resolve their conflicts without court intervention other
than granting the divorce.
The Texas Family Code requires that each party sign
an Alternative Dispute Resolution clause attached to their
initial pleading. |
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The
problem with settlement is that it usually takes significant
legal action to bring the parties to a mutually agreeable
resolution. It is like two boys in the school yard. After
they both knock each other down, one says to the other
“have you had enough.” The other replies, “if you
have.” It is
unfortunate that it has to be this way, but it is very often
true.
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VI.
What
is an Uncontested Divorce?
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An
uncontested divorce, also known as an
agreed
divorce, means that the parties will resolve all issues
between them without significant court or lawyer
participation. The lawyer’s role in this type of case is limited to filing
the petition and drafting a final decree of divorce.
In the most basic of divorces (no property and no children),
the following documents are required: Original Petition for
Divorce, Alternative Dispute Statements, Waiver of Citation,
Final Decree of Divorce, State Information Sheet. If you own
a home, add Special Warranty Deed to the list. If you have
IRAs or 401(k)s, add Qualified Domestic Relationship Order
for each retirement account to the list. If you have
children, add visitation provisions, insurance provisions,
and child support provisions to the divorce decree. In
addition, with children add Wage Withholding Order, and
Medical Support Order to the document list.
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VII.
If
the Case is Settled Out of Court, Must You Still Go Before a
Judge?
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Yes. Only
the judge can grant the divorce. Once all the documents are
in order, one of the parties will sign off on the divorce
decree and the other party will go before the judge to
“prove up” the divorce. The lawyer will ask you a number
of questions which mostly require only a yes or no answer.
The actual hearing takes only about 4 minutes. The time
spent waiting for your turn, can be as long as 2 hours
(usually about an hour, however). |
VIII.
How
Long Does a Divorce Take?
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A minimum
of 60 days. Texas law requires that the couple wait 60 days
before the Court can grant a divorce. This is known as the
cooling off period. It is the policy of the State of Texas
that parties are to remain married. The 60 day period is
about giving the parties an opportunity to reconcile.
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IX.
Does
a Spouse Have to Prove Fault on the Part of the Other Spouse to
Obtain a Divorce?
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No. Texas
is a no-fault divorce state. We simply plead, “conflict of
personalities that destroy the legitimate ends of the
marital relationship.”
No spouse has to “give” the other spouse a
divorce anymore. There is some discussion in the legislature
about doing away with the no fault divorce.
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X.
How
is Property Divided in Texas?
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All
property is community property unless proven to be separate
property by clear and convincing evidence. The division is
that which is just and right in accordance with the courts
ruling. Generally, you are looking at ½ each absent some
circumstance that indicates otherwise. For example, a number
of different factors such as unequal earning power, extent
of separate property, and fault in the marital relationship
can effect the division. There is a reported case where a 90
–10% split was deemed a just and right division. This case
was upheld at the appellate level.
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XI.
Can
I get Alimony?
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Texas
disapproves of alimony. Yes, you can get alimony if you
qualify. There are a number of factors involved and it is
only awarded for a limited amount of time.
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XII.
What
Does a Divorce Cost?
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The Texas Rules of Lawyer Discipline Rule
1.04 outlines the factors involved with attorney's fees.
Fees are be based upon the time and labor expended, the
complexities of the issues involved, the degree of
difficulty of the matter, the results achieved, the County
of venue for the divorce, and any extraordinary time or
demands placed upon an attorney which would prevent an
attorney from representing other clients. |
XIII.
Can
the Court Make My Spouse a Better Person?
| Not a chance. Frankly,
the question seems silly at first glance. However, the
question is often insinuated in a roundabout manner by our
clients. They ask questions or take actions that indicate
that they want the court to make their spouse a better
person. The only thing a court can do is enforce its orders.
The court is not going to change your spouse. |
XIV.
Can
I Do It Myself?
Yes.
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Quite frankly, however,
it is bad advice. In the first instance, divorce decrees and
closing documents are complex documents. Unless you are
familiar and have worked extensively with them, the chances
of a nonprofessional drafting one successfully is low. We
have had a number of clients who started out "doing
their own divorce" in order to save money. After
spending a lot of time in the library finding out how to do
it and even more time typing in what they believed to be a
correct divorce decree, they requested our assistance after
having their divorce decree disapproved by the Court.
The Court said to them, "this divorce decree is
insufficient, go back and try again . . . no, I can't give
you advice." |
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Secondly, the
"prove-up" of the divorce, requires that one of
the spouse put on testimony that addresses specific
evidentiary issues. If you fail to testify to a specific
requirement, the divorce will be disapproved. We have
seen Judges send Pro Se (by your self) litigants home because they failed to
prove up their divorce properly. On another occasion, one Judge said,
"go stand at the back of the room and see if you can learn to do
it." |
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Third, the Courts and
Court staff hates "pro-se litigants." It is just a
fact that pro-se (by yourself) litigants do not know the
procedures and requirements of the law. They cause the Court
process to slow down. The Courts are overbooked with tons of
cases vying for their attention. Any slowdown of the process
is disapproved of. In short, pro-se litigants do not know
the ropes and the Courts can't teach it to them. |
Save yourself some time,
frustration, and heart ache, hire a lawyer, any lawyer to assist
you with this matter.
XV.
Why
Do Lawyers Require Retainer Fees?
Short
answer, to make sure they get paid.
Rhetorically, why do doctors have a nurse at the door? Why do
mechanics require payment before giving you the keys to your
car? Why do contractors, painters, plumbers, etc. place materialmen's liens on your property for the work that they do? To make
sure that they get paid.
Lawyers
practice law because they enjoy it, because they like the
challenge, and to make their living. Like you, they have bills
to pay. They have office overhead, dreams to fulfill, and little
ones at home with their needs. Like you, they go to work to
trade their time and expertise for compensation. The retainer
insures that the attorney is compensated for his or her efforts.
XVI.
At
what age can a child decide with whom they want to live?
At
age 12 a child can sign a "Choice of Managing Conservator." This is a
document filed with with the Court that allows the child to chose their primary
conservator. It is very persuasive to the court. In conjunction with this
document, a Motion to Modify must be filed with the Court so that the Court can
modify its prior order. A Choice of Managing Conservator is not an absolute. It
must be shown that it is in the best interest of the child for the non-primary
to become the primary.
XVII.
What
is common law marriage?
"I
have lived with my significant other for 10 years, do we have to get a
divorce?" A common law marriage, in Texas, is formed by one of two
methods:
First,
if the parties have signed a Declaration of Marriage pursuant to Section 2.402
of the Texas Family Code then the parties are married.
Or
(§2.401(a)(2) Texas Family Code, if
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man and woman have agreed to be married; |
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agreement to be married they lived together as husband and wife in this
state; and |
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they have held themselves out to the public as married then the parties
are married. |
The
second test above is the most common cause for concern between parties.
Answer, just because you lived with a significant other for a period of years,
does not make you married. You have to have fulfilled all three requirements
above in order to be married. "But we had a child together." It does
not matter - a child is about paternity in this case it is not about being
married. Having a child is not one of the elements of common law marriages.
If
a Court proceeding in which a marriage is to be proved by §2.401(a)(2) of the
Texas Family Code is not commenced by the second anniversary of the date on
which the parties separated and ceased to live together, it is a rebuttable
presumption that the parties did not enter into an agreement to be
married. In other words there is a statute of limitations for a divorce
proceeding as to common law marriages, albeit, an informal and not absolute
statute.
A
person under 18 may not be a party to a common law marriage or execute a declaration
of informal marriage.
XVIII.
What
are the Texas Residency Requirements?
A
suit for divorce may not be maintained in this State unless at the time the suit
is filed either the petitioner or the respondent (one of the parties) has been
domiciled in the State of Texas for the preceding six month period; and a
resident of the county in which the suit is filed for the preceding 90 day
period.
XIX.
Can
I give up my parental rights?
A
parent may file suit for termination of the petitioner's parent-child
relationship - voluntary termination. The Court may grant the order of
termination if termination is in the best interest of the child. It is not in
the best interest of the child to terminate the parent child relationship in
order to avoid paying child support.
XX.
Can my spouse move out of county or out of state?
Yes, but
not with the child.
Spouse is
granted primary custody - that is the right to determine the domicile of the
child, then spouse can choose where the child will live within the county of
divorce and contiguous counties. Example, divorce is granted in Dallas County.
Mom is primary. Mom may choose where the child will live in Dallas County or
contiguous counties (Collin, Tarrant, etc.). If Mom decides that she wants to
move to Travis County or out of state, she will have to go back to Court and get
permission of the judge to move - not easily granted in most cases. If the
divorce decree does not have the county restriction, then the nonprimary must
file a Motion to Modify and Temporary Restraining Order to prevent Mom from
moving. Ultimately, Mom has an absolute right to move to any County, State, or
Country that she chooses. However, she can't go with the child. This scenario is
not necessarily true if nonprimary has already moved out of county at the time
Mom wishes to move. Recognize, the State of Texas and the Court does not really
care about how the two parents "feel" about one another, the State does care
about a continuing and frequent contact between a parent and his/her child,
therefore, the Court will not allow the primary to move with the child to the
detriment of a continuing relationship with the child's nonprimary parent.
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