Frequently Asked Questions about Family Law

I.     Divorce
II.    Property
III.   Child Custody
IV.  Child Support
V.   Modification of Divorce Decrees
VI.  Enforcement

I. Divorce

Are there any residency requirements in order to obtain a divorce in Texas?

In order to qualify for a divorce in Texas, one of the spouses has to have been a resident of the state for a continuous six month period and of the county of filing for a continuous 90 day period prior to the filing of the Petition.

A typical divorce requires the following steps:

The Original Petition for Divorce is filed with the court and personally served on the Respondent (the Respondent can waive service in writing if the parties are working together toward settlement from the beginning - this saves on cost and on conflict).

At the time of filing, the Petitioner can request that a standard Temporary Restraining Order (or an extraordinary order if circumstances warrant) be issued, which basically freezes the status quo of the parties and requires that no assets start to disappear before they can be divided by the court, requires that the parties act civilly toward each other and do not threaten or harass each other, steal each other's cars or mail, cut off each other's utilities, credit cards or insurance, or hide the children from each other.

If there was no Temporary Restraining Order issued, the Respondent has twenty days plus the following Monday to file an Answer; If a Temporary Restraining Order was issued, the court must set a hearing within 14 days of issuance (in Travis County, these are always held on Fridays); At that time, the court will make the Temporary Restraining Order into a temporary injunction against both parties and will usually consider temporary orders, which are the set of rules the parties will live under while the divorce is pending; Temporary orders usually involve temporary custody, visitation and support of the children, and temporary use of property and servicing of debt; It can include temporary spousal support and the payment of interim attorney's fees as well.

The parties then engage in discovery, which is the process by which parties exchange information and documents that are relevant to the case.  Common types of discovery are interrogatories (written questions), requests for admissions (true/false type statements), requests for production of documents, and depositions (oral interrogations under oath).

After the discovery is completed the parties and their attorneys (if they are represented) will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare an Agreed Decree of Divorce, which will contain all of the terms of the agreement. This is signed by the spouses and their attorneys, and then eventually by the judge.

If the parties are not able to agree on all of the issues in the case, a trial date will likely be set.

Prior to trial, the parties will be required to attempt mediation.  Mediation is an informal process allowing parties to work with a neutral third party (the "mediator") to attempt to negotiate and settle all terms of their conflict.  All communications (with very limited exception) made during the mediation process are protected by rules confidentiality and cannot be used at trial.  Parties can propose and agree to creative settlements that could not otherwise be ordered by a court during litigation.

If the parties fail to reach an agreement in mediation, the case goes to trial. At the conclusion of the trial, one of the attorneys will prepare a Final Decree of Divorce to present to the judge for signature; This will contain all of the courts rulings and (hopefully) will have resolved all issues pertaining to the divorce.

After the divorce case is filed, how long does it take to finalize?

There is a 60 waiting period in Texas from the date of filing of the petition with the court; That means that a divorce cannot be final for at least 60 days after filing - it does not mean that the divorce is automatically final on the 61st day; If the parties are in agreement as to all the terms of their divorce, the final decree of divorce can be prepared and signed by the parties during the 60 day period and can be entered by the court on the 61st day; The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce.  If the parties are not in agreement, the average time it takes to finalize a divorce is about 6 months to one year or longer, depending on the complexity of the issues and the degree of dispute.

What are the grounds for a divorce?

CRUELTY. The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

ADULTERY. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

CONVICTION OF FELONY. (a) The court may grant a divorce in favor of one spouse if during the marriage the other spouse: (1) has been convicted of a felony; (2) has been imprisoned for at least one year in the state penitentiary, a federal penitentiary, or the penitentiary of another state; and (3) has not been pardoned. (b) The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.

ABANDONMENT. The court may grant a divorce in favor of one spouse if the other spouse: (1) left the complaining spouse with the intention of abandonment; and (2) remained away for at least one year.

LIVING APART. The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.

CONFINEMENT IN MENTAL HOSPITAL. The court may grant a divorce in favor of one spouse if at the time the suit is filed: (1) the other spouse has been confined in a state mental hospital or private mental hospital for at least three years; and (2) it appears that the hospitalized spouse's mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

Can I get temporary spousal support while our case is pending?

Temporary spousal support is often awarded at a temporary orders hearing on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse; There are no guidelines to set temporary spousal support, so the party seeking support should be prepared to show what his/her needs are and what resources are available to the other spouse to meet those needs.

What about permanent alimony?

• The paying spouse was convicted of family violence within 2 years of the date of the filing of divorce;
• The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is unable to support him/herself through appropriate employment because of an incapacitating physical or mental disability;
• The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is the custodian of a child who requires substantial care and personal supervision, making it necessary for that spouse to remain at home with that child; or
• The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and the requesting spouse lacks earning ability in the labor market adequate to provide support of minimal needs.

If the party qualifies for maintenance under (1) (3) or (4), the maximum term of maintenance is 3 years and the amount ordered cannot exceed 20% of the gross income of the paying spouse; If the party qualifies for maintenance under (2), the term can be indefinite.

Additionally, most child support orders are made with a wage withholding order; That means that the paying parent's employer will be ordered to withhold the child support amount from the paying parent's paycheck and send the child support directly to the registry.  This works best when the paying parent is with a large employer for a long period of time, but can work in other situations; Unfortunately, this doesn't work in every case; Parents who are self-employed or who work on commission generally have to be responsible for their own payments.

If the party qualifies for maintenance under (1) (3) or (4), the maximum term of maintenance is 3 years and the amount ordered cannot exceed 20% of the gross income of the paying spouse; If the party qualifies for maintenance under (2), the term can be indefinite.

Can I get medical insurance benefits through my spouse's employer after the divorce?

Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse's group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as "C.O.B.R.A." benefits, which are avail able to the former spouses of people who work for employers who have 20 or more employees.

In general this law provides that employers must offer "continuation coverage" for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge canno t be more than 2% greater than what is charged to employees.

After the three years have ended, the law states that the employer must offer a former spouse the right to purchase "conversion coverage", but there are no limits on how much the employer can charge for this coverage.

The C.O.B.R.A law further provides that the former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.

In order to obtain your C.O.B.R.A. benefits you have to file your application with your spouse's employer by no later than sixty (60) days after the termination of your marriage. If you do not file your application by that date you will not be able to get these important benefits.

If you wish to have your C.O.B.R.A. benefits you must contact your former spouse's employer directly and request the appropriate forms. This is not a service that is customarily performed by our office. You must contact your former spouse's employer directly if you want to obtain these benefits.

II. Property

What is community property?

Texas law defines community property as all of the property that either spouse acquires during the marriage, except separate property.  Separate property is anything owned prior to marriage, anything inherited by one spouse, anything received as a gift by one spouse and certain portion of a personal injury recovered by one spouse.

All property is presumed to be community property, until the party claiming that property is separate can prove it by a preponderance of the evidence.

How is the community property to be divided?

The law requires that the community estate be divided equitably (not necessarily evenly or 50/50). This means that under the circumstances, the division of property must be fair and equitable.  There are many circumstances that the court can consider in determining what is "equitable", including fault in the breakup of the marriage, disparity of earning power of the spouses and their ability to support themselves, health of the spouses, the spouse to whom conservatorship of the child is granted, needs of the child of the marriage, education and future employability of the spouses, etc. (for a complete list, see "Equitable Division of Property" on the definitions pageof this site)

Can I get a portion of my spouse's pension and employment benefits?

To the extent that a married person accumulates an interest in a pension, retirement, profit sharing or other employee benefit plan during the marriage, it is community property and subject to division upon divorce; If a court awards a portion of one spouse's retirement benefits to the other spouse, the attorney's will prepare a Qualified Domestic Relations Order (QDRO) to be sent to the employer, who will be ordered to distribute Spouse 1's benefits to Spouse 2 in accordance with the court's order; In the case of a cash account, such as a 401(k), the employer will usually disburse the funds in 30 to 90 days; In the case of benefits to be paid upon retirement, such asa pension plan, the employer will be given a calculation of a percentage to be applied at the time payments begin and the employer will be ordered to send the appropriate amounts to Spouse 2 in accordance with the court's order.

How do the courts deal with a closely-held business or professional practices?

Like any other asset, a business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, there is a community property interest that must be dealt with in the dissolution.

The most difficult and time-consuming aspect in determining the value of a business or professional practice is in evaluation of "goodwill." This is the intangible value that most businesses have, which is based on the expectation of future business, bas ed on established name or reputation. If the business or practice is operated by one of the spouses, it still has a goodwill value, even if it could not be sold on the open market.

Certified public accountant and business appraisers are hired to determine the value of a business or professional practice. The accountant or appraiser who is hired reviews the books and records of the business or practice and prepares a written report.

III. Child Custody

Can I get joint custody of my children?

Joint Custody means different things to different people - some people mean "joint managing conservatorship", and some people mean joint physical custody.

In Texas, there is a presumption that it is in the best interest of children that parents be appointed as "joint managing conservators", although in cases where there has been domestic violence or where one parent has demonstrated an inability or unwillingness to act in the best interest of the children, the court may impose a sole managing conservatorship

In a joint managing conservatorship arrangement, the parents share the rights to make decisions for the children, although the children still generally reside with one parent and visit with the other; In a court-ordered joint managing conservatorship, one parent has the exclusive right to determine the primary residence of the children, often with a restriction on that right to a particular geographic area, and the other parent visits with the children in accordance with a very specific and detailed visitation schedule (often the "Standard Possession Order").

In an agreed joint managing conservatorship, the parties can agree that neither parent is the "primary" parent, but simply determine that the children's residence will remain within a particular geographic area and the parties can create a shared possession schedule with the children; The parties can agree to joint physical custody (for example, one week with one parent and one week with the other), when circumstances and the distance between residences allows, however, it is rare that a court will order such an arrangement without agreement of the parents.

If I have custody of our children, can I relocate with them to another county, city, state or country?

In most cases, a judge will now issue orders at the time that an original order is made, that prevent the primary parent from changing the residence of the children from a specified geographical area; Usually, the court will restrict the children's residence to the current county of residence plus any contiguous counties; However, the court can be more or less restrictive than that if circumstances require.

If you have an older order that does not restrict the children's domicile to a particular area, you are still required to give the other party 60 days notice of your intent to move the children, and if the other party wants to try to stop you from moving, they will likely file for a temporary restraining order preventing you from moving until a hearing can be held; At the time of the hearing, it will be your burden to show the court some compelling reasons why you need to move; Some compelling reasons the court may consider would be that your job is moving you and you can't find comparable work locally, or that your family resides elsewhere and you need their help and support with the children; If the court suspects that you are moving away to interfere with the children's relationship with the other parent, you will lose.

IV. Child Support

How is Child Support determined?

The vast majority of child support is paid according to the Child Support Guidelines; According to the Texas Family Code, child support is calculated by multiplying the proper percentage by the paying parent's net income.

Net income is calculated by subtracting only 5 items from the parent's gross income (gross income includes commissions, overtime pay, tips, bonuses, interest, dividends, rental income, royalty income, trust income, retirement income, disability income, etc.):

(1) social security taxes,
(2) federal income tax (based on the tax rate for a single person claiming one exemption),
(3) state income tax (for individuals who reside in states that collect state income tax),
(4) union dues, and
(5) health insurance premiums for the child(ren)

The proper applicable percentage is calculated by determining how many children the paying parent has an obligation to support; For example, a parent who only has an obligation to support one child will pay 20% of net earnings; A father who has an obligation to support two children with the same mother will pay 25% of net earnings; However, a father who has an obligation to support two children with different mothers will pay 17.5% of net earnings to each child.

There is a cap on child support of $7500 of net earnings; In other words, if the paying parent earns more than $7500 per month (net), the percentage applied will only apply to the first $7500. The only exception to this is if the court finds that the child or children have additional or exceptional "needs" that require additional support. "Needs" have been defined by the courts to include private school, horses, violin lessons, traveling sports and dance teams, etc. In other words, if a child has participated in certain activities that are important to the child and part of his or her life during the time his or her parents were married, and the custodial parent will not be able to continue such activities with just the guideline amount of child support, the court will deviate from the guidelines and order additional support (proportionally to the parents' income levels) to ensure that the child will be able to continue with such activities.

If a child is disabled and has extraordinary needs, the court may and often will deviate from the guidelines to ensure that the child gets the additional services s/he needs.

How long is child support owed?

Child support is owed until the child becomes 18, unless the child has not graduated from high school, in which case the child support continues until the child has graduated from high school, as long as the child is fully enrolled in school; Presently, the law doe s not give judges the power to make a parent support a child beyond that, unless the child is physically or mentally disabled, in which case, support can be continued indefinitely.

Parents can agree that child support is to continue into the college years, or that one parent will be solely responsible for college expenses, and they can include such agreement as part of a decree of divorce; Such an agreement is not enforceable by contempt, but can be enforced as a contract, by either the parent who should be receiving the support or by the child, if that child is over the age of 18.

How is child support supposed to be paid?

The courts will almost always order that child support must be paid through either the local registry (in Travis County that is the Domestic Relations Office and in Williamson County that is the District Clerk's Office) or the State Disbursement Unit (the San Antonio office of the State Attorney General).  Any payments not made according the court's order are not counted and are generally considered "gifts."; This protects both the paying parent and the receiving parent because these registries keep an accounting of what payments have been made and on what date; This way the receiving parent can easily prove that certain payments were not made, or the paying parent can easily prove that such payments were made; The moral of this story: Don't make informal payments to the receiving parent and expect to get credit for it!

Additionally, most child support orders are made with a wage withholding order.  That means that the paying parent's employer will be ordered to withhold the child support amount from the paying parent's paycheck and sendthe child support directly to the registry; This works best when the paying parent is with a large employer for a long period of time, but can work in other situations; Unfortunately, this doesn't work in every case; Parents who are self-employed or who work on commission generally have to be responsible for their own payments.

If I am being denied access to my children, do I still have to pay my child support?

Absolutely, yes; Texas law is very clear that even if you are being denied visitation with your children, you are still required to pay your support and you can still be held in contempt for failure to pay; If you are being denied access to your children, you should pursue an enforcement action against the parent denying you access.

Am I required to guarantee my child support with a life insurance policy?

You are not required, under Texas law, to guarantee your child support with a life insurance policy; However, many receiving parents will request that you have a policy for that purpose and if you have an existing policy, the courts may require that you name your children as beneficiaries for the term of your child support obligation.

V. Modification of Divorce Decrees

Is a final decree really "final"?

When minor children are involved, the "final" decree is intended to be "final", but often needs to be modified prior to the children reaching majority; The terms that relate to the children can be modified if there is a "substantial change in circumstances" that requires modification; The terms that can be modified include, custody, terms of possession, child support and domicile restrictions.

To request a modification of child support up or down, the change in the amount of support must be 20% or $100 per month.

VI. Enforcement

What happens if a spouse violates a court order?

If a spouse fails to comply with the terms of the court order, that party may be held in contempt the court and punished accordingly. Such punishment can include up to a $500 fine and/or up to 180 days of imprisonment for each violation; The most common violations relate to non-payment of child support and refusal to comply with the possession order (failing to turn the children over for their court-ordered visitation).

In addition to the punishments for contempt, the court can order other remedial measures; For example, if a parent refused to send the child to the visiting parent for Christmas break, the visiting parent may receive make-up time, which may be an additional week during the summer or all of Christmas vacation the following year; For child support violators, the court will impose a judgment for missed child support payments and set out a payment schedule on that judgment.; Additionally, the judgment will accrue interest at the rate of 6% per year.

Morehart & Weinman

812 San Antonio Street, Suite G-20
Austin, TX 78701
(512) 472-4040
Fax: (512) 472-4086
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At Morehart & Weinman in Austin, family law attorney Daryl Weinman helps Texas clients throughout Travis County and Williamson County in communities such as Austin, and Georgetown.