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How long will my divorce take?It is impossible to predict with reasonable accuracy how long a divorce will take. The length of time is dependent upon many factors, including but not limited to the complexity of the issues involved and the motivations, personalities, and time constraints of the parties and lawyers involved. The minimum amount of time allowable by law is 60 days from the filing of the petition for divorce. This is a legislatively mandated "cooling off period", during which the State of Texas hopes you will rethink your decision! There are divorces which take this amount of time, but in our experience, these are divorces with very simple issues and parties who are both very agreeable and highly motivated.
How much will my divorce cost?
The cost of a divorce is also impossible to predict with reasonable accuracy, which is why nearly all divorce attorneys bill at an hourly rate as opposed to quoting a flat fee. A lawyer who attempts to predict the cost of a divorce is often setting a client up for disappointment. Like the length of time, the cost is dependent upon many factors, including but not limited to the complexity of the issues, and the motivations and personalities of the parties and lawyers involved. The above being said, there are ways a litigant can try to minimize the cost of a divorce.
Before any action in a divorce is taken, a cost-benefit analysis must be performed. Actions or motions in a divorce which will cost more than the benefit gained by the client should not be taken. Also, because going to trial is financially (and emotionally) draining, all of the attorneys in our firm believe that settling a case on reasonable terms is usually preferable than going to trial. From the outset of any divorce litigation, an attempt will be made to settle the issues on reasonable terms. Most of the time, mediation is used to facilitate communication and aid in the settlement of the issues.
Can my spouse keep me from getting a divorce?In Texas, as long as a spouse is prepared to testify under oath that a marriage has become insupportable because of conflict of personalities, and that there is no hope for the reconciliation of the marriage, they will be granted a divorce. There is nothing their spouse can legally do to prevent this.
What is involved in filing a divorce?
The first step in a divorce is the filing of a petition. A petition is a document which tells the court who the parties are, who their children are if any, and generally, states what the person filing the petition is asking the court to do. A divorce petition always asks that a divorce be granted, and the grounds for the divorce. 99% of the time, the only ground for the divorce is that the relationship has become insupportable because of a conflict of personalities. This is what is referred to as a "no-fault" divorce. A petition normally asks that the community property of the spouses is divided and that any separate property is confirmed as the filing spouses separate property.
If there are children, the petition may state who the petitioner believes the children should live with and whether major decisions for the children should be made jointly between the parties, or solely by one party. A divorce petition may also request temporary orders for the support and/or protection of the parties, the immediate preservation of their estate, or the immediate custody and/or protection of their children. If immediate protection is needed, the petition may also request temporary restraining order.
What do I do if I have been served with a lawsuit?If you have been served with a lawsuit, then you have until the Monday following the expiration of twenty days to file a response, and you will need to speak with a lawyer immediately. It is not advisable to an answer a lawsuit without having at least consulted with an attorney. The question of whether and how to file an answer to a lawsuit can be a complex question, and there can be serious jurisdictional consequences to doing so.
What is the purpose of Temporary Orders?
Often parties cannot wait until a divorce is finally settled, as they have immediate issues which need to be resolved quickly. A judge issues temporary orders in order to outline what will happen during the time the divorce is being litigated. This may include, but is not limited to the following- who the children will live with during the divorce, who will pay child support and/or temporary spousal support, who will pay the bills, who will have the use of the marital residence and other property while the case is pending, how discovery will be conducted, etc. Temporary orders often order parties not to do any number of harmful acts to the other spouse or to the property of the parties. Either party can ask for temporary orders at any time.
How quickly can I get temporary orders?Temporary orders can be heard by a judge, as long as the opposing party has three days' notice. There are specific rules for providing this notice. Travis and Hays County each have Standing Temporary Orders which order the parties not to do various harmful acts during the divorce. These temporary orders are binding on the parties as soon as notice is given. They do not require a hearing to be effective.
What if I cannot wait for a temporary order?A temporary restraining order asking that the opposing party not participate in basic malicious and destructive behavior can be requested with the filing of the petition. This is not needed in Travis or Hays counties, as they have these types of temporary restraining orders as standing orders. See "How quickly can I get temporary orders" above. If further immediate action is needed without notice to the other party (i.e. excluding a party from the marital residence), then a party must obtain a Temporary Restraining Order or a Temporary Protective Order. These orders are reserved for situations where a party can show that immediate harm would result if such action is not taken immediately.
What is mediation?Mediation is a structured settlement conference, where communication is facilitated by a trained neutral party, called a mediator. Most of the time, both parties show up to a mediation with their lawyers, normally at the office of the mediator, and sit in different rooms. The mediator then carries information and settlement offers back and forth between the two rooms, attempting to help the parties reach an agreement. The mediator will often attempt to explain the position of the opposing party, and even play devil's advocate - arguing the position of the other party - if they feel that doing so will help settlement. With a good mediator and prepared parties, mediation is normally successful.
What if I know nothing about the property or accounts in my estate?
There is often an imbalance of information between spouses with regard to their financial affairs. This imbalance may be - and often is - so great that one spouse is completely in the dark as to the extent and nature of the community assets. In such a case, investigation into the nature and extent of the community estate will become a very high priority. This process is called "discovery." Discovery includes, but is not limited to the request for documents and information relevant to the case.
In many cases, but particularly in a divorce where a spouse has little to no information about the estate, this would include requests for copies of all financial statements for several years prior, copies of all tax documents, copies of all documents pertaining to the spouses' businesses, real estate, etc. The opposing party would be asked many questions about the estate while under oath, both in written form and in person. Finally, experts may be hired to aid in the investigation of the estate.
What if my spouse refuses to provide information about our estate?In a divorce, spouses cannot refuse to provide information about the community estate, if such information is relevant, or reasonably calculated to lead to relevant evidence. If a spouse refuses to provide information, then the Court can be moved to compel the disclosure of the information. If the Court compels the information, and a party still does not comply, the Court has the ability to hold that party in contempt, which may involve jail time.
When will I see my children if I get divorced?
The answer to this question is highly dependent on the circumstances of the individual divorce case. Courts are given broad power to order any possession schedule they deem to be in the best interest of children. However, the legislature has also stated that there is a presumption that the Standard Possession Order is in the best interest of the children to a divorce. So unless adequate evidence is presented to overcome this presumption, a Standard Possession Order is likely to be ordered, and is ordered in most divorce cases.
A parent who is granted a Standard Possession Order, and who lives within 100 miles of their children will have the right of possession of their child on the first, third, and fifth weekend of a given month, and every Thursday evening. In addition, they will alternate possession on major holidays, spring break, and approximately half of Christmas break. They will also have a thirty day period during the summer. A parent to a divorce may choose to expand their periods of possession so that they pick the child up from school to begin their possession (as opposed to picking the child up at 6:00 p.m.), and drop them off at school after the possession (as opposed to dropping them off at 6:00 p.m. on Thursdays or 8:00 p.m. on Sundays).
So for example, Thursday evening possession can last anywhere from 6:00 pm. Thursday until 8:00 p.m. Thursday, to school letting out on Thursday until school letting in on Friday. When a parent in a divorce resides more than 100 miles from the children, the Standard Possession Order changes, such that the parent does not exercise Thursday possession, has a longer summer possession (42 days), every Spring Break (as opposed to ever other), and has a choice of either every first, third and fifth weekend a month, or one weekend a month of their choosing.
How much child support will I have to pay?
The answer to this question is also dependent upon the circumstances of the individual case. However, like possession, child support is also subject to a presumption mandated by the legislature. The legislature has set forth guidelines for courts to follow which are presumed to be in the best interest of children. These guidelines are 20% of the paying spouses net monthly income, for one child, 25% for two children, 30% for three children, and so on.
These guidelines are presumed to apply to the first $8,550 of a paying spouses net resources, which means if a paying party makes more than approximately $124,000 per year, and the receiving party feels they need more than the percentage applied to $8,550 (Child support of $1,710 for one child, $2,137 for two children, $2,565 for three children), the burden will shift to the receiving spouse to show that the actual needs of the children are great enough to require an excess over the presumed amount.
How does the marital property get divided?
In a divorce, the court has the power to divide all community property in a manner that the court feels is "just and right", taking into consideration the circumstances of the parties and any children of the marriage. In deciding what is just and right, the court may consider many factors, including - but not limited to - the relative earning power of the parties, the ages and medical needs of the parties, the needs of the children of the marriage, the separate property of the parties, and either party's fault in the breakup of the marriage.
More often than not, the parties to a divorce agree on the division of their community property, and enter into an agreed decree of divorce. The decree of divorce, whether the terms of the decree are dictated by a judge, or agreed to by the parties, partitions the property of the spouses, and the property awarded to each spouse legally becomes the separate property of the spouse. Often, closing documents such a special warranty deeds for real estate, qualified domestic relations orders for retirement accounts, etc., are drafted and executed for transfer purposes.
Can I get alimony from my spouse?
A court cannot force anyone to pay "alimony" in Texas. However, a court can order "spousal maintenance" under certain circumstances. This includes circumstances where the marriage has lasted ten years or more, and one of the spouses clearly cannot support themselves due to lack of earning capacity, mental or physical disability, or because a disabled child of the marriage makes it necessary for one spouse to not be employed. This may also include circumstances where a spouse has been convicted of family violence.
This is not to say that spouses during their divorce and as part of a settlement cannot agree to alimony or spousal support even when the above circumstances are not present. In Texas, only certain things can be forced, but most things can be agreed. Often, in order to properly divide an estate, one spouse ends up agreeing to pay the other spouse a certain amount of money over time. The question of whether this payout will be considered alimony, spousal support, or titled as some other form of payment is a question to be carefully considered by a lawyer and/or tax professional.
What is collaborative law?
Collaborative law is a relatively new way to resolve family law matters, and is designed to alleviate some of the acrimony which is inherent in family law litigation. The defining feature of collaborative law is the signing of an agreement whereby the parties commit to settling all issues in their divorce or other dispute without seeking the assistance of a court, and further agree to share relevant information freely and voluntarily. The parties attempt to settle their issues in a series of meetings between the clients and their attorneys. Finally, the parties agree that if the process fails, such that an agreement cannot be reached, the parties will release their collaborative attorneys and will seek litigation counsel.
The advantages of the collaborative process are obvious. However, the process is to some degree dependent upon the forthrightness and goodwill of the parties. Consequently, it can be very beneficial for some clients, and can be unsuccessful for clients whose personalities or relationship dynamics are not fit for the process. The decision of whether to use the collaborative law process is therefore a decision which should be carefully made with the aid and advice of an attorney.
What does it mean that Texas is a "no fault state"?
In some states, a party asking for a divorce must prove that a divorce is necessary because one of the parties to the marriage is guilty of any of a number of specific acts. Examples include cruelty, adultery and fraud. The legislatures of those states have reasoned that unless these things have taken place, there is no need for the divorce and the parties should stay married.
An unfortunate consequence of these requirements is that some parties must stay unhappily married because they don't fall into a particular category. Another unfortunate consequence is that parties to a divorce who might otherwise settle their cases, cannot do so, because neither party will agree to be the one who goes down on public record as the cruel, adulterous or fraudulent spouse.
The Texas legislature has decided not to require spouses to prove fault in order to obtain a divorce. One party must simply testify that the marriage has become "insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."
If Texas is a "no fault" state, why can one spouse claim that one of the parties is at fault?The fact that Texas is a "no fault state", does not mean that a party to a divorce cannot ask for a disproportionate division of the community estate. It simply means that a party divorce does not have to prove fault. For more on division of property based on fault, see "How does marital property get divided?" above.