Divorce

How much will it cost me to get a divorce?

Every case is different.  The cost of a divorce depends on the complexity of the case and the willingness of the parties to negotiate to agreement or prolong the case through contentious litigation.  Oftentimes – though not always – couples can reduce their costs by resolving their divorce through the collaborative law process.

How long do we have to be separated before we can get a divorce?

There is no legal period of separation in Texas.  However, Texas does currently require a couple to wait a minimum sixty (60) days from the date a petition for divorce is filed before they can finalize their divorce.

How long does it take to get a divorce?

At a minimum, it takes sixty (60) days from the date a petition for divorce is filed.  Beyond the minimum sixty (60) day waiting period, the amount of time it takes depends on the parties.  Most cases take anywhere from six (6) to eighteen (18) months to resolve.  The more you and your spouse can agree upon, the less time your divorce will take.

What if one of us wants a divorce but the other does not?

Texas is a no-fault divorce state.  If one spouse wants a divorce, the Court will grant it.

How long do I have to live in Texas to file for divorce in Texas?

Either you or your spouse must live in Texas for six (6) months and in the county in which you plan to file for divorce for ninety (90) days before you file.

If my spouse and I agree on all of the terms of our divorce, can we have one attorney represent both of us to finalize the divorce?

One attorney cannot represent both of you in the divorce. In this situation of an uncontested divorce, some couples opt to have one spouse represented by an attorney while the other represents himself or herself pro se. The attorney can draft the legal documents but only as the attorney for one of the parties. The non-represented spouse is encouraged to hire his or her own counsel to review the documents and provide advice to the other spouse.

How does the Court divide property and debts?

There is no set formula that a Court follows in order to divide property and debts. Each case is evaluated on an individual basis. However, the presumption in Texas is that community property should be divided based on a 50/50 division. An equal division of property does not mean that a Court will equally divide each individual asset or debt. Rather the Court will award assets and debts so that each party has an essentially equal share of the total estate.

One or both spouses can ask the Court to award him or her a disproportionate share of the community estate, meaning more than 50 percent. The party requesting the greater share of the community estate must then prove to the Court a basis for such a disproportionate award. Some of those factors include, but are not limited to: disparity in earning potential between the parties, differing levels of education, differences in the ages of the parties, differences in health, who is granted primary responsibility for the children, and the needs of the children.

What is community property and separate property?

Any assets or debts that were acquired before the marriage or during the marriage by gift or inheritance are considered to be separate property. Community property includes all assets and debts that are acquired during the marriage. If separate and community property are commingled or mixed together, the Court presumes the separate property to become community property unless the party claiming it to be separate property can prove it otherwise. In order for separate property to retain its separate character, it is important to maintain it separate and apart from community interests. Otherwise, one can incur significant expense paying a financial expert to perform what is known as tracing.

Once a couple is married, any assets earned or acquired during the marriage are presumed to be community property. For example, income earned by either spouse is community property belonging to both spouses. It is irrelevant if one spouse earns income and then places it in a bank account with only his or her name on the account. The same is true of debts. If one spouse acquires debt on a credit card in only her or her name, the debt is still presumed to be community property belonging to both spouses.

What effect does adultery or other bad conduct of a spouse have on the division of property?

Surprising to many, adultery or other bad conduct usually has very little impact on property division in a divorce. The exception to this is when the bad conduct was intended to harm the other spouse or when the bad behavior caused a wasting of community assets.

Does Texas have alimony?

Although court-ordered alimony is not permissible in Texas, a judge can award what is called spousal maintenance. A Court can award spousal maintenance if a couple has been married for at least ten (10) years, the spouse requesting maintenance lacks sufficient property to meet his or her needs and that spouse (1) lacks earning power to provide for his or her own minimal reasonable needs, (2) is unable to support himself or herself due to an incapacitating disability, or (3) is the custodian of a child of the marriage and is unable to work due to care required of the child. Other awards of spousal maintenance can be made in cases of family violence. The amount of the spousal maintenance award is capped at 20% of the payor’s average monthly gross income or $2,500.00 per month, whichever is less. And the duration of the award is capped at 3 years. However, the statutory caps do not necessarily apply when the party seeking maintenance has a disability. Furthermore, spouses can agree to contractual alimony which is not subject to maximum dollar amounts or payment periods.

Who will in the house during the divorce proceedings?

Unless and until a court order is issued, both you and your spouse have the right to live in the marital residence. After one party files for divorce, the parties often attend a temporary orders hearing at which time the Court will decide who will live in the home until the divorce is final.

What is the process for divorce?

The answer to this question depends on the process you and your spouse choose. For answers to questions about the process of divorce using the collaborative method, please see our page on collaborative law. If your divorce is handled in litigation, the answer varies from case to case. However, every case begins with a petition for divorce. Once the other party accepts service, the next step in many cases will include a temporary orders hearing where important interim issues will be decided. A case may also involve written discovery and depositions, the completion of a social study and/or a psychological and custody evaluation. Mediation may also be ordered. If the parties are unable to resolve the case through mediation or informal settlement negotiations, the Court will order the parties to trial. Trial may occur as a “bench trial” where the judge decides the case in its entirety or as a jury trial.

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Child Custody

How does a court determine custody?

This is a question all divorcing parents have – and the answer is very complicated. First, what most people call “custody” is called “conservatorship in Texas. Most parents are awarded “joint managing conservatorship,” which gives each parent certain rights to make important decisions about their children. Those decisions include where the children will live, where and how the children will be educated, medical treatment they will receive and what religious training they may receive. Courts determine which parent will make these decisions on a case-by-case. The decision regarding which parent shall make the decision about the child’s primary residence is most often based upon which parent has been the primary caregiver to the children. Factors may also include which parent is in the better position to provide emotional support and simply be available to meet the children’s daily needs. The financial means of a parent are typically not a factor considered by the Court.

How does a court determine what time each parent will have with the children?

As with conservatorship, “parenting time” is determined on a case-by-case basis. However, Courts are somewhat limited by statute as to the schedule they set for parents. Absent abuse or neglect, the non-custodial parent is most often awarded what is called a “standard possession schedule.” However, many parents often agree to a different schedule – some opting for a week on/week off arrangement or any other arrangement that best meets the needs of their own family. These alternative arrangements can be accomplished by informal settlement negotiations, through mediation or arbitration, or through the use of the collaborative law process. In the litigation process, Courts often rely upon social studies and psychological and custody evaluations by court-appointed experts to assist them in this decision-making process.

What is the standard possession schedule (commonly referred to as standard visitation)?

The Standard Possesion Schedule is set forth in sections 153.311 through 153.317 of the Texas Family Code. Although there are many more details to the Standard Possession Schedule, essentially the non-custodial parent who lives less than 100 miles from the children has possession of the children on the first, third and fifth weekends of the month, extended periods during the summer and alternating possession for Thanksgiving, Christmas and Spring Break. This standard schedule is modified for non-custodial parents who live more than 100 miles from their children.

Can I or my former spouse move out of state with my children?

The Texas Family Code is written so as to protect the relationship that both parents have with their children. A move to another state would cause obvious problems for a non-custodial parent who is trying to maintain a close relationship with his or her children. In many counties, including Dallas, Collin and Denton counties, once a petition for divorce or suit affecting the parent-child relationship is filed, the children may not be removed from a certain geographic area for the purpose of changing the children’s residence without a court order. Dallas, Collin and Denton counties have what is called a standing order that prohibits such a move immediately upon the filing of a family law case. In other counties such as Tarrant County, such a move can be stopped with a temporary restraining order and subsequent temporary orders.

How are custody and visitation determined after the divorce is filed but before a final order is entered?

Unless and until a court order is issued, both parents have identical and equal rights to their children. Those rights include the right to make any and all decisions for the children and the right to have possession of their children. Once a suit for divorce is filed, one or both parties typically request a temporary orders hearing, at which time the Court will make a temporary determination on which party shall make what decisions for the children and what possession time each parent will have with the children.

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Child Support

How is the amount of child support determined?

The person who pays child support is called the obligor. The amount the obligor is ordered to pay in child support is most often calculated by a statutory formula. First, the obligor’s gross resources are calculated, including employment income, investment income and any other income resources available to the obligor. Certain deductions are then subtracted from the gross income to arrive at a net income calculation. Those deductions include federal income taxes, Social Security taxes, union dues, and payments for the children’s health insurance. Once the obligor’s monthly net income is determined, the obligor is ordered to pay the following percentage for child support:

• 20% for 1 child
• 25% for 2 children
• 30% for 3 children
• 35% for 4 children
• 40% for 5 children
• for 6 or more children, not less than the amount for 5 children

Additional credits and calculations are made if the obligor has children in more than one household who are entitled to support from the obligor. Furthermore, child support is only calculated for the first $7,500.00 of the obligor’s net income. In other words, if the obligor earns more than $7,500.00 net income per month, her or she will only pay child support on the first $7,500.00 of that income by court order. A court can award more child support than as determined by the above percentages in limited circumstances. Those limited circumstances most often involve children with medical disabilities or other special needs.

How is child support determined after suit is filed but before a final order is entered?

Once a petition for divorce or a suit affecting the parent-child relationship is filed, either party may request a temporary orders hearing. At that hearing, the Court will hear evidence of income and the needs of the children. Based up on the evidence presented, the Court will order one party to pay child support to the other while the case is pending.

Can child support payments be paid directly between former spouses or must they go through a state agency?

The Texas Family Code now requires that child support payments be made through the Texas Child Support Disbursement Unit. Accounts with the TCSDU are set up when a particular form is completed at the time a court order for child support is entered. Payments received are recorded for tracking purposes and then forwarded on to the custodial parent. Turnaround time for recording and forwarding payments is surprisingly quick. For more information on the TCSDU and their payment system, please see their website at www.info.txcsdu.com.

How do I make my child support payments?

The Texas Family Code now requires that child support payments be made through the Texas Child Support Disbursement Unit. Accounts with the TCSDU are set up when a particular form is completed at the time a court order for child support is entered. Payments received are recorded for tracking purposes and then forwarded on to the custodial parent. Payments can be made by mailing a check or money order to the TCSDU. In addition, the TCSDU accepts credit card payments, electronic funds transfers, online bill payments and Western Union wire transfers. For more information on how payments can be made, please see the TCSDU website at www.info.txcsdu.com and/or the Office of the Attorney General Child Support page at www.oag.state.tx.us/cs/index.shtml.

How do I obtain child support payments once they are made through the state?

Once a child support order is entered and payment is made to the Texas Child Support Disbursement Unit, payments will be sent directly to you. Turnaround time for recording and forwarding payments received is surprisingly quick. You can elect to receive your payments by direct deposit or through the Texas debit card program. Without an election, payments will be mailed to you. For more information on the child support payment program, please see the Office of the Attorney General Child Support page at www.oag.state.tx.us/cs/parents/index.shtml.

What do I do if court-ordered child support is not being paid to me?

In order to obtain the child support payments previously ordered, you must seek enforcement by the Courts. You can do this by hiring an attorney to pursue a private enforcement action on your behalf or you can apply for assistance through the Office of the Attorney General at www.oag.state.tx.us/cs/parents/apply_services.shtml.

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Modification

What can be done if the parenting time or visitation schedule no longer fits my family’s needs?

If you believe that the parenting time or visitation schedule is no longer in your children’s best interest, you can petition the Court to modify the schedule. In most cases, you must be able to establish that there is a “material and substantial change in circumstances” of one of the parties or the children before the Court can consider evidence in support of your request to modify the prior order.

What can be done if child support payments are less or more than they should be?

The Court may modify a child support order if there has been a “material and substantial change in circumstances” of one of the parties or the children since the last order was entered. In addition, if three (3) years have passed since the date of the last order and the monthly amount of child support to be paid would differ by 20% or $100.00 from what would have been ordered as guideline child support, then the Court may modify the child support payment. However, if the prior order was based upon an agreement by the parties that was not in accordance with guideline calculations, the Court may only modify the order if there has been a “material and substantial change in circumstances” of one of the parties or the children.

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Paternity

What rights do I have with regard to my children if their mother and I were never married?

You have the same rights to be a parent to your children as does a married man. However, you must first establish your paternity of the children. If you have not voluntarily signed an Acknowledgement of Paternity, then you must file a petition asking the Court to acknowledge your paternity of the children. You and the children may be required to subject yourselves to a DNA test. If and when your paternity is established, the Court will determine conservatorship, possession and access, and child support issues.

How do I get child support for my children if their father and I were never married?

If the father of your children previously signed an Acknowledgment of Paternity, then you can file a Suit Affecting the Parent-Child Relationship, asking the Court to order the father to pay child support. It is likely that the Court will then also determine issues of conservatorship and possession and access, granting the father the right to spend certain periods of time with the children.

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Adoption

What can I expect in the adoption process?

Upon filing a petition for adoption, some of the steps you can expect in the adoption process include a home study (which can take several months), fingerprinting, and criminal background checks.  You will also need to provide references that will be contacted in the process of the home study.  Once all of the steps are completed, a final hearing is set with the court to complete the adoption.

Can I adopt my stepson/stepdaughter?

A stepparent can adopt a stepchild, but first the absent biological parent’s rights must be terminated.  The absent biological parent can consent to the adoption and sign an Affidavit of Relinquishment, terminating his or her parental rights to the child.  If that parent will not sign an Affidavit of Relinquishment, grounds for termination must be established and ruled upon by a Court before you can proceed with an adoption.

What if I adopt my stepchild and then my spouse and I divorce; what are my rights and obligations?

Once you adopt a child, you are legally that child’s parent and are treated no differently than a biological parent.  You have all of the same rights and obligations as a biological parent.

Do I have to be married to adopt?  

You do not have to be married to adopt.  Individuals who are single, married, divorced or widowed are eligible to adopt so long as they can provide a stable, loving home for the child, receive a positive home study recommendation and have no criminal history.

Are both parents listed on a child’s birth certificate in a same-sex parent adoption?  

No.  Currently under Texas law, a birth certificate may list only one female adoptive parent and one male adoptive parent.  In the case of a same-sex couple, the parties must choose which parent will be listed on the birth certificate; the other parent is not listed.

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The Litigation Process

How do I notify my spouse that I have filed for divorce?

The choice is yours on how you wish to notify your spouse about your petition for divorce. Some prefer to avoid the confrontation altogether and have their spouse learn of the divorce when they are served with the court papers by a process server or constable. Some individuals choose to tell their spouse themselves. Many have their attorneys prepare a Waiver of Service which can be handed to the spouse or delivered by the attorney. This Waiver avoids the surprise and perceived embarrassment of being served with Court papers. The Waiver allows the spouse to accept service with dignity and tends to start the divorce process on a more amicable path.

What is a temporary orders hearing?

A temporary orders hearing is a hearing at which the Court decides important interim issues before entry of a final order in the case. It takes place in the courtroom and is open for the public to see. This hearing can involve child conservatorship, possession and access; child support; residence in the marital home; spousal support; interim fees; or any and all of the above. Any issue can be brought before the Court for a temporary decision.

A temporary orders hearing can often be the most important hearing in your case. Although it is intended to decide matters on a temporary basis only, it sets a status quo or precedent of sorts for the parties. This is particularly true with issues of conservatorship and possession of and access to the children.

What is discovery?

Discovery is the means by which attorneys gather information necessary to settle and/or try your case. Written discovery can be in the form of statutorily required disclosures, interrogatories which are written questions and requests for production of documents. In family law, we very often also exchange sworn inventories and appraisements. The Inventory and Appraisement is a full and complete disclosure of all assets, debts and liabilities of all parties in the case. Each party completes one, signs it before a notary under penalty of perjury and then exchanges his or her with the other party. Discovery can also be in the form of depositions or by requests for information from third parties.

What is a deposition?

A deposition is a statement recorded by a court reporter and sworn to under penalty of perjury. Parties are entitled to depose the other party or third parties prior to trial so that they can learn about the facts and legal arguments of the other side before the trial date. At the deposition, the witness is sworn in as though he or she were in court and then is asked a series of questions by one or more attorneys. Each deposition can take many hours, up to six (6) hours per side. Sometimes the deposition is videotaped.

What happens at mediation?

Mediation is a settlement process by which a neutral third party mediator attempts to help the parties settle their case. Most often, each party and his or her attorney is in a separate room from the other party. The mediator spends time with each party learning the position of each party and the facts supporting his or her position. It is not the job of the mediator to decide the case for the parties. Rather, the mediator works to find the middle ground upon which the parties may settle. If the mediator is successful and the parties are able to reach an agreement, then the parties will sign and enter into a Mediated Settlement Agreement which is field with the Court. The Mediated Settlement Agreement is a binding, irrevocable agreement. The attorneys will transfer the terms of the Mediated Settlement Agreement into a final enforceable order to be signed and entered by the Court.

What happens at final trial?

Trial is the final stage in the litigation process whereby final orders are issued. Like the temporary orders hearing, it occurs in the courtroom and is open to the public. The trial is also usually limited in time by the Court; the length depends on the issues presented. A trial may last anywhere from one-half of a day to several weeks.

Trial may occur as a “bench trial” where the judge serves as both the judge and jury, deciding all factual and legal matters in the case. Trial may also occur as a jury trial, where the judge decides all matters of law and the jury decides all matters of fact. Because of the additional preparation needed for a jury trial, they are more expensive than bench trials. As a result, more family law cases that are tried are resolved by bench trials rather than jury trials.

A trial typically begins with opening statements by each attorney, explaining to the Court what the attorney expects the evidence will show and what his or her client is asking of the Court. The opening statement is essentially a road map of the attorney’s case. Witnesses are then sworn in and called to testify before the Court. All evidence – whether statements, documents, photographs, recordings or objects – must be presented to the Court through a witness. Each side has an opportunity to present or cross-examine all witnesses. After all witnesses have testified and all evidence has been offered, each side has the opportunity to make closing arguments. The closing argument is a summary of the evidence presented to the Court in support of the arguments made by each attorney. Once closing arguments are made, the judge or jury renders a decision in the case.

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The Cleaves Law Firm offers full-service legal counsel and representation in family law matters for clients in the vicinity of Grapevine, Texas including communities such as Southlake, Colleyville, Hurst, Euless, Coppell, Flower Mound, Bedford, Keller, Roanoke, Arlington, Dallas, Fort Worth, Westlake, McKinney, Frisco, Irving, and Denton. We serve the following counties as well - Tarrant County, Dallas County, Collin County and Denton County.