- What is a Common Law Marriage?
A common law marriage is where a man and a woman enter into enter into a marriage if 1) they agree to be married, 2) live in Texas as husband and wife, and 3) represent to others in Texas that they are married. There is no minimum time period required, but both parties must be 18 years or older.
- Does “legal separation” exist in Texas?
No, there is no such thing as a “legal separation” under Texas law. Even though temporary orders may be entered by the court, they are not to be construed as a legal separation; therefore, community property and debt continue to accrue until you are divorced.
- What are jurisdictional and venue requirements?
In order to get a divorce granted, the husband or wife have to live in Texas at least six (6) months and reside in the county they file for divorce in for at least ninety (90) days prior to filing for divorce. An uncontested divorce can be granted shortly after the sixty (60) day waiting period. A contested divorce can typically take between nine (9) and twelve (12) months.
- How long does it take to get divorced?
The time it may take to get divorced will vary from case to case; however, no divorce can be granted until at least sixty (60) days have elapsed since the filing of the Petition for Divorce. This is the minimum waiting period.
- What is the difference between Community and Separate Property?
It is presumed in the Texas Family Code that all property acquired by the parties during the marriage is community property. Separate property is that property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance, and can include recovery for personal injury. Community property is subject to a “just and right” division by the court.
- What factors does the court consider when dividing property?
The Texas Family Code allows the judge to consider any relevant factor, which might include evidence of:
a. Fault in the break-up of the marriage
b. Differences in earning capacities and education
c. Age and health of the parties
d. Any special needs of the parties
e. Separate property or potential for inheritance of either spouse
- Can I get interim relief?
Yes, if interim relief is needed, a request for temporary orders is filed with the petition for divorce along with a request for hearing on the temporary orders. A hearing on temporary orders can usually be obtained within two weeks of the filing of the request, but the timing on this depends on the court’s schedule and may take longer. Interim relief can be obtained for such things as who gets use of the house or other property, attorney fees, child support, and spousal support.
- What is a “no-fault” divorce?
The Texas Family Code has adopted the “no fault” concept of divorce. The usual ground is: “the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”
- What is a fault divorce?
It may be appropriate to allege other grounds such as cruelty, adultery, abandonment, living apart. Generally, a fault based divorce is pleaded to provide a basis for an unequal property division.
- Is child support required?
Generally, yes, Texas courts require child support payments of some form.
- How is the amount of child support determined?
Under the Texas Family Code, child support is set according to a formula based on the net resources of the parent paying without regard to the parent receiving the support. Net resources are determined using a table in the Texas Family Code and includes salary, commissions, overtime, bonuses, dividend income, lottery winnings, etc., etc. There are deductions that can be deducted in order to determine net resources. If the person paying has no other children than those before the Court, the percent of net resources will be 20% for 1 child, 25% for 2 children, 30% for 3 children, 35% for 4 children, and 40% for 5 children. There are limits and other considerations on child support amounts that may affect some individual payors.
- What type of custody can I get?
The Texas Family Code allows for Joint Managing or Sole Managing Conservatorship. There is a presumption that a Joint Managing Conservatorship is in the best interest of the child.
- What is joint managing conservatorship?
Joint managing conservatorship is a sharing of the rights, duties, and powers parents have concerning their children. The Texas Family Code presumes that it is in the best interest of the children for the parents to have a joint managing conservatorship. One parent (the primary one) will have the right to designate the primary residence of the child. The other parent (secondary) will have parenting time and generally will pay child support.
- What is a Standard Possession Order (SPO) in Texas?
The Texas Family Code defines what a Standard Possession Order is and provides that for parents that live within 100 miles of each other and for parents that live outside of 100 miles of each other. For parents living within 100 miles of each other, the SPO provides for possession by the parent not establishing the primary residence on the 1st, 3rd, and 5th weekends of the month, Thursday evenings during the school year, sharing of holidays and spring break, with an extended summer visitation for the secondary conservator.
- My child wants to live with me, does that mean anything?
The Texas Family Code provides that children over the age of twelve (12) years can express to the court in chambers whom they wish to live with. However, the court will consider that when deciding who the child will live with primarily but that does not necessarily mean that the child’s decision is final.
- Can you briefly describe the adoption process?
According to the Texas Family Code, before an adoption can be finalized, the parental rights of the birth parents must be terminated. The child must live with the adoptive parents for at least six months. An ad litem for the child may be appointed and a social study, background check, and criminal history check of the adoptive parents must be performed. A health, social, education, and genetic history report of the child may also be required. Once these matters have been completed, a hearing is held with the court to determine that the adoption is in the best interest of the child.
- Can Attorney fees be recovered or reimbursed by the opposing party?
Yes, attorney fees may be ordered to be paid as part of the division of property in a divorce. Generally, attorney fees are recoverable in any suit to enforce a court order.