Frequently Asked Questions for Texas Divorces
Here you will find the most robust FAQs list of any family law firm we have been able to find on the internet! We hope this basic information helps you, but these answers to important questions are not a substitute for competent legal counsel. For each of these questions and answers there are numerous factors that can and often do affect the real-life outcome. Call us today to get more information about these and other family law topics!
How is child support calculated?
The parent who owes child support pays a set percentage of his or her income to the other parent for the support of the children. This amount is calculated based on the Net Monthly Resources of the obligor parent. The Net Monthly Resources are likely not the same as the obligor’s check stub might suggest.
Do Texas courts require one party pay child support?
Texas presumes it’s in the Best Interest of the Child that the obligor parent pay child support. However, if the parties agree that no child support will be owed AND the obligee parent is not accepting any state benefits like WIC, food stamps or Medicaid. If the obligee spouse is accepting any state benefits the Texas Office of Attorney General will seek child support from the obligor spouse regardless of the agreements of the spouses.
If I get 50/50 possession of my children, do I have to pay child support?
Maybe. Some courts will allow the parties to agree that neither will pay support since both parents equally bear the costs of raising the children. However, some courts still require a spouse who makes significantly more income to pay the other parent some support.
How does my visitation schedule affect child support?
For the most part, it doesn’t. An obligor parent must pay the ordered child support regardless of how much visitation he or she gets with the children. Failure to pay child support does not affect the right to visit the children.
Can my spouse and I agree that neither party will pay child support?
The parties may agree that neither will pay child support. However, the Court will order support payments if the oblige parent is receiving any state benefits like WIC or Medicaid for the children
In a Texas divorce does the wife automatically get custody of the children?
No. The Texas Family Code requires that the court do what is in the Best Interest of the Child (BIC) when deciding where and with whom the children reside.
What is “conservatorship”?
Technically, conservatorship deals with the rights and duties of the parents regarding the children. However, because some of the rights tend to follow the children, possession and access to the kids often affects the parent’s rights and duties, i.e. the right to receive child support follows goes to the parent who has primary custody of the children.
What is the standard visitation schedule?
The standard possession schedule gives the non-custodial parent possession of the children on the first, third and fifth weekends of each month beginning at 6:00 p.m. on Friday, and ending at 6:00 p.m. the following Sunday as well as every Thursday evening between 6:00 p.m. and 8:00 p.m.
What is the Expanded Standard Possession Schedule?
The expanded standard possession schedule gives the non-custodial parent possession of the children on the first, third and fifth weekends of each month beginning when school is dismissed on Friday, and ending when school resumes the following Monday morning as well as every Thursday beginning when school is released on Thursday and ending when school resumes the following Friday morning. Thus, on the non-custodial parent’s weekends, he or she will have a 4-night weekend with the kids.
Can I get 50/50 possession of my children?
Many courts will allow the parents to agree to a 50/50 possession schedule with the children. However, some courts prefer to stick to the Texas Family Code and order a standard possession schedule or expanded standard possession schedule. Note that there are options beyond week on/week off plans that yield a 50/50 split. The Texas Family Code does not mention a 50/50 possession option, so if the court must order a plan because the parents cannot agree, the court will uniformly follow the family code’s possession schedule.
Who carries health insurance on the children during and after a divorce?
Typically if one parent has insurance for the children through his or her employment, that parent will continue to provide the insurance. The other spouse may be required to pay a portion of the premiums. If neither parent has insurance for the children, the parent with primary possession of the children will enroll the children in Medicaid if nothing else.
What is community property?
Texas presumes any and all property obtained during the marriage is community property. This includes income from employment, vehicles, land, houses, and other smaller property. It means that every piece of property is presumed to be owned jointly by the spouses, i.e. it is not his car and her car. In Texas, each spouse owns half of both cars!
How is property divided in Texas?
In Texas, the marital property is divided in a way the parties agree is fair, or the court thinks is fair. This fair division is called a “just and right” division.
Can a spouse get alimony in Texas?
In a way. Texas is formally a non-alimony state, but Texas does allow for one spouse to pay a monthly maintenance payment to the other spouse if the spouse does not have the resources to pay for his or her reasonable minimum needs. Spousal maintenance is relatively difficult to get in Texas, and at most it typically runs for a few years, not in perpetuity like in alimony states.
Does the wife automatically get the house in a divorce?
No, Texas requires a just and right division of the marital estate. Either spouse could end up with the marital residence depending on many factors or by agreement of the parties.
If my spouse cheated on me, can I get more of the property?
Maybe. Be advised that Texas family courts see adultery all the time, so Texas judges are not shocked by a cheating spouse. However, the cheating spouse may have to compensate the innocent spouse if:
The cheating spouse spent significant money on one or more paramours (buying a few dinners likely doesn’t warrant compensation)
The funds spent on the paramour can be documented (there needs to be evidence, not mere suspicion)
There are resources available to compensate the innocent spouse (if the cheating spouse has no money or resources to compensate the innocent spouse, then the effort to prove the affair was wasted)
Does my spouse automatically get half of my retirement?
Maybe. Be advised that Texas family courts see adultery all the time, so Texas judges are not shocked by a cheating spouse. However, the cheating spouse may have to compensate the innocent spouse if:
Not necessarily. There are two major points here. First, is that some or all of your retirement was accrued during the marriage. The portion accrued during the marriage is not yours. It belongs to the community. It is community property. This means that your spouse has an ownership interest in the retirement accrued through your job! So your spouse is not technically getting half of your retirement; half of it belonged to your spouse the whole time. Likewise, any retirement your spouse had is half yours.
Second, your spouse may be willing to forego her share of your retirement in echnage for more of some other asset such as the marital residence. The retirement accounts can be negotiated.
What is a Qualified Domestic Relations Order (QDRO)?
An order signed by the court that is separate and distinct from the divorce decree that divides a retirement account. This order tells the retirement plan administrator how to divide the retirement account according to the terms of the divorce decree. Most divorce attorneys contract these technical orders out to other attorneys who concentrate their practice on QDRO preparation.
Can I keep my car in a Texas divorce?
Generally, each party keeps the car in his or her possession. This gets complicated when both parties are on the car note with the lender. There are ways of sorting out this problem.
Who pays the debts after the divorce?
The courts like to divide the debts down the middle when possible, but the parties are free to agree to a plan to pay off the debt. However, it should be noted that the creditor will come after unpaid debt primarily against the party who owns the account. For example, regardless of what the Final Decree of Divorce says, if Spouse 1 signed the contract with MasterCard®, then Mastercard® is coming after Spouse 1 for the debt.
While many spouses would love to dump their credit debts off on the other spouse, but doing so can be catastrophic to credit scores. If Spouse 1 has a credit card, but the responsibility for paying the credit card is assigned to Spouse 2, what motivation does Spouse 2 have to pay the debt? In highly contested divorces, Spouse 2 might actually prefer to NOT pay the debt just to punish Spouse 1. Clever attorneys look for ways to protect their clients, and dumping debt onto the other spouse isn’t always a good idea.
Can I cancel the health or auto insurance on my spouse during the divorce?
No. Even in an open enrollment period that would allow you to cancel health insurance, doing so during a divorce is a no-no. A temporary Restraining Order or standing order will likely expressly state that neither party can cancel the insurance for the other, but even if you could, it is bad business. There is not legal separation in Texas. So if your spouse was seriously injured during the proceedings, the medical bills will fall upon the marital estate. Better to be insured.
Likewise, the auto insurance should stay in effect. If the TRO or standing orders does not forbid canceling the auto insurance, doing so would be bad business since you have a community property ownership stake in the car your spouse is driving.
Can I take money from savings or joint checking before or during the divorce?
Many divorces will have a temporary restraining order or a standing order in place that prevents the parties from clearing out the bank accounts. However, the courts usually allow for the parties to withdraw money for the purpose of paying living expenses and legal fees. No vacations or other big purchases without speaking to your lawyer though!
How does bankruptcy affect my divorce?
A bankruptcy has a profound impact on your divorce. The automatic stay that the bankruptcy puts in place to protect you from creditors binds the state courts as well. The divorce is on hold until the federal bankruptcy court “lifts the stay” to allow the divorce court to continue the proceedings.
Who pays the household bills while the divorce is pending?
Generally, the party who lives in a residence pays the bills. If spouse 1 moves out, then he or she will be responsible for paying his or her own rent and utilities, while Spouse 2 continues to pay for the rent or mortgage and his or her own utilities. Thus, when the parties separate their finances, each pays his or her own, which typically depletes the marital estate quickly. If parties cannot afford to pay for two households, then they sometimes agree to continue to live together during the proceedings for economic reasons.
Is Texas the right place for me to file for divorce?
For a divorce to be proper in Texas, prior to the filing of the divorce, one spouse must reside in Texas more than six months, and reside in the county for ninety days. The county of residence is the proper venue for the case.
How do I start the divorce process in Texas?
A petition for divorce is the formal document that starts the process of divorce. The day it is filed starts the statutory waiting period.
Do I need to do anything if my spouse filed for divorce?
Yes. At a minimum, an answer should be filed to prevent the case from being finalized without your consent.
Is there a waiting period for divorce in Texas?
Yes. The waiting period in Texas is sixty days after the day the divorce was filed. Thus, the wait is actually sixty-one days.
Can the waiting period be waived?
The waiting period can only be waived by agreement of the parties and permission of the court, or in the case of family violence that makes the sixty day waiting period unworkable.
Is the procedure different for an uncontested divorce in Texas?
No. The procedure is the same for uncontested divorces as for hotly contested divorces, however, an uncontested divorce will be much less expensive because several expensive processes like discovery and mediation are bypassed due to agreements made by the parties.
What if one party in the marriage doesn’t want a divorce?
Texas will still grant a divorce even if one spouse very much wants to stay married. Forcing a person to remain married because the other spouse doesn’t want the divorce would be problematic to say the least.
Will my spouse have to be served with papers?
As with all legal proceedings, a spouse is entitled to proper notice of the suit for divorce. In some cases, as in an uncontested divorce, a spouse may waive the right to be served with divorce papers. A waiver of service must be signed and notarized.
What are grounds for divorce in Texas?
Grounds for divorce include adultery, abandonment, living apart, incarceration, cruelty, and being confined to a mental hospital. However, the most common reason for divorce is insupportability. Most Texas divorces do not blame the break-up of the marriage on either party, and there is not a lot to be gained in a divorce by blaming fault.
Does one party have to be at fault for a Texas divorce?
No. Texas is a no-fault jurisdiction. A party can file for divorce because he or she wants one, and for no other reason.
What if I want a divorce but I cannot find my spouse?
If a spouse has moved out and cannot be located, there are methods of meeting the required legal formality of serving him or her. Your attorney can help with this.
How do I get the court to enter a final decree?
To get the court to make a final decree of divorce, either the court will hold a final trial and render an order, or the parties will agree to a final decree, and the court will accept that in lieu of a final trial. All of the legal procedures and formalities for every divorce must be met before the court will sign a final decree.
How do I pay for a divorce in Texas if my spouse controls the money?
The funds available to the parties in a marriage belong to the community estate. That means that the income earned by the spouses belong to the couple, not to the earner. The court can order funds be paid by one spouse to the attorney of the other spouse if the second souse does not have any other means to pay an attorney.
Is there an advantage to filing first in a divorce?
There are some small advantages to filing first such as presenting arguments first at final trial. However, if the other party has already filed for divorce, all is not lost. Both parties are free to plead for whatever they want throughout the proceedings, and both parties will be allowed to present their cases.
Can I get a divorce even if my spouse and I are still having sex?
Yes. Being intimate with your spouse does not affect the legal proceedings. However, keep in mind that sleeping with your spouse may degrade your legal arguments in the divorce. For example, it will be hard to argue that you want a divorce because your spouse is cheating on you if you still have sex with your spouse.
Can a lawyer take a contingency fee in a divorce?
No. A lawyer is not permitted to work on a contingency fee basis in Texas family law cases like divorce. This is why lawyers require a retainer to be paid before work is done.
What is a common law marriage in Texas?
A common law marriage in Texas begins at the instant that three elements are met:
The spouses reside together in Texas (no time minimum time needed)
The parties hold themselves out as being married (presenting themselves to the community as a married couple)
The parties have a present intent to be married to each other.(the parties believe they are presently in a marriage relationship with each other)
Is there a common law divorce in Texas?
No. There is no common law divorce in Texas. Once people are in a marriage relationship, a formal divorce is required to get them out.
Can I open my spouse’s mail?
No. Mail addressed solely to your spouse should be given or forwarded to your spouse.
Can I snoop into my spouse’s email or social media accounts?
NO! Intercepting electronic communications between your spouse and a third party violates the Texas wiretapping statute, and can land you in very hot and expensive water.
Can I get a divorce if I still live with my spouse?
Yes. Cohabitation is a choice made by the spouses that does not affect the legal proceedings. Though, cohabitation during a divorce can be problematic for the individuals.
Glossary of Common Texas Family Law Terms
- Texas is a non-alimony state. Texas does have Spousal Support that can run for a period of years, but it is rare that a spouse would get a payment from the other spouse after the divorce in perpetuity.
- The most basic response the Respondent should file in a divorce to make sure the Petitioner does not complete the divorce without participation of the Respondent.
- Best Interest of the Child (BIC)
- Texas requires that all decisions the Court makes regarding the children be based on what the Court thinks is in the Best Interest of the Child. The BIC is based on the totality of the circumstances, and each judge is different, so guessing how the judge will rule on an issue with the children is often difficult.
- Collaborative Divorce
- A type of divorce that is completely different than traditional adversarial divorce. Collaborative divorce uses a team to resolve the divorce completely and efficiently, sometimes in 10-12 weeks. The team has two spouses each with a lawyer, a financial professional and a mental health professional for a total of six people all working to solve the problems the spouses will go through after the divorce.
- Community Property
- Texas presumes everything that is acquired during the marriage belongs to the community; both parties have an ownership interest in each item.
- The possession and access of the children along with the rights and duties relating to the children.
- This document acknowledges the Petition for divorce, and lays out the terms under which the Respondent wishes to finish the divorce
- This is the District court or County Court at Law that will oversee the divorce
- The formal method that allows the spouses to learn as much as they can about all of the facts of a marriage. Financial information, property information, and personal information of the parties is fair game for discovery. Discovery can be quite labor intensive and expensive for one or both parties in a divorce.
- Final Decree of Divorce
- This document is the formal order that finishes the divorce. The Decree will have all of the provisions necessary to divide the property between the parties, and control the parenting plan for the children.
- Final trial
- The last hearing in a divorce. This hearing is usually the most intense, stressful hearing and is characterized by formal testimony. The judge will render a decision that ends the divorce.
- Joint Managing Conservatorship (JMC)
- An arrangement where both parents share rights and duties relating to the children. Texas presumes that it is in the Best Interest of the Child (BIC) that both parents be actively involved in the children’s lives.
- Just and Right Division
- Texas requires the marital estate be divided in a “just and right” way. Just and right is another way of saying “fair” under all the circumstances. The division should be fair to both parties based on all the facts before the court.
- Legal Separation
- Does NOT exist in Texas. A person is either married, or not.
- Marital estate
- Everything the spouses own individually and jointly at the time of marriage including personal property, retirement accounts, vehicles, and real estate.
- Mediated Settlement Agreement (MSA)
- This is the product of a successful mediation. Once the parties sign this document, they cannot back out of the agreement, but a final trial will not be required, thus saving the parties thousands of dollars of legal fees, months of waiting, and the stress of final trial. The Final decree must conform to the agreements of the MSA.
- A process of dispute resolution where the spouses and their respective attorneys meet attempt to resolve disputed issues in the divorce by using a mediator that goes between the parties trying to reach an agreement that will settle the divorce. This is an opportunity for the parties to have a say in how the divorce is finished. If mediation fails, many times, final trial is the last option.
- A person, usually an attorney or retired judge, that has received special training that enables them to help two spouses reach agreements that will settle the divorce.
- Obligee Parent
- The parent to whom child support is owed from the obligor parent
- Obligor parent
- The parent required to pay child support to the oblige parent for the support of the children.
- This is the document that is filed with the Court by the Petitioner that officially starts the divorce process. The petition lays out the initial terms under which the Petitioner wishes to finish the divorce.
- The party who files a divorce. The petitioner has some procedural advantages, and most of the pleadings throughout the divorce will refer to this person as Petitioner.
- Protective Order
- An order separate from any other order in a divorce process that enjoins a person from certain criminal behavior. This order, unlike a Temporary restraining Order is enforceable by the police. A person violating the Protective Order will likely be arrested when the police arrive.
- Qualified Domestic Relations Order (QDRO)
- An order signed by the court that is separate and distinct from the divorce decree that divides a retirement account. This order tells the retirement plan administrator how to divide the retirement account according to the terms of the divorce decree.
- The party who was filed upon. This is the spouse that didn’t start the divorce.
- Separate property
- Any property owned by a spouse when he or she entered the marriage or any property gained during the marriage by inheritance, as a gift, or as judgment for pain and suffering in a personal injury lawsuit.
- Spousal Maintenance
- Like alimony, but in Texas, the monthly payments run only for a term of years, not in perpetuity.
- Temporary Orders
- Orders, usually obtained at a hearing in court that lay out the rules the parties will live under during the pendency of the divorce. Temporary orders will typically provide some stability for use of the parties’ property, child support, possession and access to the children, and more. Once these orders are in place, the parties will abide by these orders until they are modified in court, or the final decree is entered.
- Temporary Restraining Order (TRO)
- Orders that protect people and property during the pendency of a divorce. Not to be confused with a Protective Order, a TRO is an order designed to make the parties “play nice” during the divorce process. There are numerous “standard” provisions but the intent is to keep either spouse from damaging the property and the relationships between the spouses and the children.