Divorce
A Texas divorce involves both the division of the parties' property and, if children are involved, custody of the children and child support. Below is list of frequently asked questions regarding divorces. If you have further questions please feel free to contact our office for a consultation.
How long will the divorce take?
The Court may not grant a divorce before the 60th day after the divorce is filed. In those cases where you and your spouse reach an agreement, most divorces are completed in approximately 60 days. In those cases where the issues are contested and a final trial is necessary it may take several months depending on the complexity of the case to complete.
How much is this going to cost?
The major factors in the cost of any divorce are the complexity of the issues and the level of hostility between the parties. In my initial consultation I am happy to provide you with an estimate of what I believe the case will cost. In all contested cases I charge an hourly rate for the work performed and provide you with a monthly itemized list of the work performed on your case.
Can my spouse and I hire the same lawyer?
An attorney may only represent one party in a divorce. It is a conflict of interest to represent both parties.
What is separate property, and how does it differ from community property?
Separate Property is property owned by a spouse before marriage, property acquired by a spouse as a gift or from an inheritance, and any recovery by a spouse for personal injuries. Any property that is not separate property is considered community property. The Court may divide community property in the divorce. The Court may not award the separate property of a spouse to the other spouse in a divorce.
What is custody, and what is joint custody?
Child custody has two components, the power to make decisions regarding to the children or "rights and duties," and the respective periods of possession between the parents below.
The rights and duties that the parties must agree on or in a contested case the Court must decide, include who decides where the children live and if there is a geographic restriction, who make decisions on major medical issues, and who decides what school the children attend. Under a joint custody order, called a "joint managing conservatorship," the parents may agree or be given the right to make these decisions together, except one parent must have the right to determine where the children live.
The possession schedule is decided separately. The Court is not required to award the parents equal time with the children in cases where the parents are appointed as joint managing conservators. Parents may, however, agree to equal time with their children subject to the Court's approval.
What is "standard possession" of children in Texas?
The Standard Possession schedule is a schedule for possession of the children contained in the Texas Family Code. The law presumes that the Standard Possession order is in the best interest of the child. In practical terms, this means the Standard Possession order is the schedule that the Court usually orders in contested custody matters unless there is a compelling reason to do otherwise.
The Standard Possession order states that the parent who does not determine where the child or children live has possession on the 1st, 3rd, and 5th weekend of each month, every Thursday during the school year, and 30 days of possession in the summer. That parent also has possession in odd numbered years for the Thanksgiving school holiday, the Christmas school holiday from the day after Christmas until the day school resumes after the Christmas holiday. In even numbered years that parent has possession from the time school is released for the Christmas holiday until the day after Christmas holiday.
Most custody orders contain provisions that the parents may agree to any possession schedule they believe is appropriate, but that absent an agreement the Standard Order will be the possession schedule.
Can my children decide where they want to live?
When children reach the age of 12, the law allows them to express an opinion, however, it is not binding on the Court. Be advised that involving children in a divorce or putting them in the position of having to choose between their parents can have serious adverse consequences on the long term well being of your children. (8) Can my spouse prevent me from moving in the future?
The Court may place a geographic restriction on the residence of the children. This restriction is often either the county in which the divorce occurs or the county of the divorce and any county that shares a border with the county of divorce. These residency restrictions, however, usually require the parent who does not determine where the children to also remain in the same geographic area or the restriction is lifted.
How much child support will I have to pay?
Child support is determined based on the income of the parent paying support. Child support is calculated by taking that parent's gross monthly income, subtracting social security taxes, federal income taxes for a single person claiming one deduction, union dues, and health insurance coverage for the child. This amount is the parent's net income. For help in determining taxes you can refer to the Office of the Attorney General Tax Charts.
The Court then sets child support as a percentage of the net income based on the number of children the parties have together.
- 1 Child 20%
- 2 Children 25%
- 3 Children 30%
- 4 Children 35%
Can I get alimony?
Alimony may be awarded in cases where the parties have been married more than 10 years or your spouse has been convicted of or received deferred adjudication for a crime of family violence. Alimony is limited to a time period of three years.
While the divorce is pending, however, the Court may order temporary spousal support paid between the parties to assure that each spouse is able to maintain a residence and pay their bills until the property is divided at the final trial or until an agreement is reached between the parties.
What is mediation and when am I required to go to mediation?
Mediation is a non-binding confidential settlement conference at which a neutral mediator is present to help you and your spouse reach a final settlement of your case. Parties may attend without attorneys, but be advised that a mediator may not provide you with legal advice and since an agreement reached in mediation is binding it is highly advisable that you have legal counsel at mediation.
In most cases the parties attend mediation after the divorce petition has been filed, but before a final trial. The local rules of most counties generally require most cases to attempt mediation before final trial.
What does board certification mean?
Board certified attorneys have completed a series of requirements set out by the State Bar of Texas to obtain this designation. These include:
- receiving references from judges and other attorneys experienced in their field,
- devoting a large percentage of their practice to their specialized field,
- participating in an extensive range and complexity of family law cases
- practicing for 5 years, and
- passing a one-day written examination.
- attending ongoing continuing legal education R. Shane McFarland is Board Certified in Family Law and practices family law exclusively.
What are Temporary Orders?
Because there is a 60 day waiting period before a divorce may be completed and a contested divorce may take longer to complete, the Court may render temporary orders in a divorce. These hearings often take place shortly after the divorce is filed. After hearing from both parties, their attorneys, and any witnesses, the Court can render a temporary order for child support, possession and access to the children, temporary possession of property, and spousal maintenance. The Court may make additional orders that it sees fit to preserve the parties property and protect the parties children. In most cases these orders stay in place until the divorce is completed.
What if I need to change my divorce decree in the future?
In most cases a division of property in a final divorce decree cannot be changed in the future. The provisions regarding children in a divorce decree, including conservatorship, possession and access, and child support may be changed at a latter date if the circumstances of the parents or children have changed.
