Divorce Lawyer's
Frequently Asked Questions - 20 Questions
I. May I Withhold Visitation because my Spouse will not pay child support?
II. May I Stop Paying Child Support because my Spouse will not give me my
visitation and access?
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
Dallas Divorce Process.
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.
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.
-
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.
VI. What is an Uncontested
Divorce?
-
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.
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?
IX. Does a Spouse Have to Prove Fault on the Part of the Other Spouse to
Obtain a Divorce?
X. How is Property Divided in
Texas?
-
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.
XI. Can I get Alimony?
XII. What Does a Divorce Cost?
-
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, but not really.
-
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."
-
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."
-
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
- a man and woman have agreed to be married;
- after agreement to be married they lived together as husband and
wife in this state; and
- if 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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