I. May I Withhold Visitation because my Spouse will not pay child support?
- 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?
- 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?
- 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?
- 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.”
- 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?
- 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, Service of Process, 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?
- 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?
- 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.
IX. Does a Spouse Have to Prove Fault on the Part of the Other Spouse to Obtain a Divorce?
- 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.
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?
- 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.
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 yourself) 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 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?
No child can chose who they want to live with and it is bad advice for someone to ask their child to make such a decision. This is why the legislature has done away with the old “Choice of Managing Conservator” affidavit. It no longer exists. Although the Choice of Managing Conservator affidavit is no longer authorized, the court can still interview the children in chambers.
Many courts practice what is called the “Henderson Rule” named for former Collin County District Judge Curt Henderson. The basic Henderson Rule is that a child (young adult) age 15 years or greater can be interviewed by the court to decide with whom they want to live. The Henderson Rule is not, however, a sanctified Texas rule. On the contrary, in those Collin County cases where it has been cited to allow the teenager to “go on visitation” as they decide, the court is ignoring the law.
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. People call on this all the time. You cannot terminate your parental rights in order to avoid paying child support. Note, the statute says you can be terminated and still ordered to support your child.
XX. Can my spouse move out of county or out of state?
Yes, but not with the child. Unless they have moved the court for relocation.
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.