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Family Law FAQs

Frequently Asked Questions

Q:

How does the court determine child custody?

A:

If both parties cannot come to an agreement involving child custody, a court will look at the best interests of the child in determining child custody arrangements. Courts typically favor joint custody so that both parents continue to have access to the children as well as frequent visitation.

Q:

How is child support determined?

A:

If parties cannot come to an agreement on child support, the court will rely on statutory guidelines that are based on the obligor’s net resources, the number of children needing support and other factors to determine a fair child support order. A child support order can be modified if there is a substantial change in circumstances for either parent.

Q:

What are the residency requirements to file for divorce in Texas?

A:

A person must reside in Texas for six months prior to filing and ninety days in the county of suit before suit is filed.

Q:

How long will it take to finalize my divorce?

A:

A minimum of 60 days. Texas law requires that the couple wait 60 days after the date the divorce petition is filed to finalize the divorce. How long any individual case takes to resolve depends on many factors. Some courts require a divorce case to go to trial fairly quickly, while other courts are content to let divorce cases languish for very long periods of time.

Q:

Does it matter which spouse files for the divorce?

A:

Probably not. Except for some slight procedural advantages, the person who brings the case first gets to talk first. There is usually not much advantage to filing the divorce papers.

Q:

How is property divided in Texas?

A:

The starting point is that the court presumes that all the property of the marriage is community property, and if you have separate property, you have to prove it by tracing it with "clear and convincing evidence." The court divides the property in a "just and right manner." What does this mean? In most cases, it means a 50/50 split. In other cases, factors such as unequal earning power and fault in the marital relationship can affect the division of property. 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.

Q:

What is the process for an action for divorce?

A:

Separation. Texas does not recognize the legal concept of separation. You are "married" until a court enters a final decree. Nevertheless, you can enter into a "separation agreement" or "partition and exchange agreement." Your actions at the separation stage can "point" the case to the final outcome.

Original Petition for Divorce. The divorce process starts by filing a document entitled "Original Petition for Divorce." That document informs the court that a divorce is sought, of any grounds the party may have, and what the party wants the court to award in regard to property and children. Concurrently with the filing of the Original Petition, a party may ask for temporary orders, temporary restraining orders, and/or a protective order.

Temporary Orders. Temporary orders are orders issued by the court to place immediate controls upon the relationship of the parties, the parties' financial affairs, child custody, and financial support while the divorce is pending.

Mediation. Mediation is a process where both parties meet in a neutral setting to discuss their differences and attempt to resolve the case.

Discovery. "Discovery" is a broad general term for a number of legal devices designed to gather information. Discovery is sometimes an informal process of exchanging documents or information between the parties' attorneys.

Trial. If the case cannot be settled, then it will be set for trial. Often, in addition to the pre-temporary orders and mediation, a second mediation will be ordered prior to a final trial. Trial is often expensive, stressful, and risky. A trial can be before the court or before a jury upon request.

Post-Trial / Final Decree. Whether there is a settlement agreement or a trial, at the conclusion of the case a Final Decree of Divorce is drafted. This document spells out who gets what property, where the primary residence of the children will be, how much child support will be paid, and how various child-rearing decisions will be made in the future. The court's orders in the Final Decree of Divorce can in some circumstances be modified in the future.

Appeal. If there has been a procedural error in the trial, or if the ruling of the court was not equitable or not in the best interests of the children, you may file a motion for a new trial, or begin an appeal within a very limited period of time.