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Divorce

Frequently Asked Questions

Q:

How long does a divorce take to be finalized?

A:

The only appropriate answer that can be given to this question is, it must be at least 60 days from the date the petition for divorce is filed. Texas law requires that the divorce be on file with the Court for at least 60 days prior to the divorce being granted. Beyond the 60-day waiting period however, it really depends on the type of case – how contested is it? Are there children? If the case isn’t heavily contested or there are not many assets or children, these cases normally do not take more than 3-4 months. The opposite is obviously true as well – the more issues, assets, children, and litigation between the parties, the longer the case will take to finalize.

Q:

I have heard of a no-fault divorce, is there also a “fault “divorce?

A:

Under the Texas Family code, you are required to tell the court in the petition for divorce why you and your spouse are divorcing. These are called the “grounds” for divorce. There is no-fault ground (you and your spouse don’t get along anymore) or you can have a divorce granted on a “fault” ground. The grounds for no-fault divorce are in supportability (you don’t get along anymore and there is no hope of reconciliation) and separation.

The fault grounds for marriage include adultery, cruelty, abandonment, and insanity.

Q:

What is community property and how much does each spouse get?

A:

Community property under Texas Law simply means “any property acquired by a couple during their marriage (with a few exceptions) is equally owned by both spouses.” Anything and everything that you and your spouse own at the time of the divorce is presumed to be community property. When it comes to community property, the Court is to divide community property in a “fair and just manner.” “Fair and Just” is normally interpreted by Texas courts as an equal division between the parties of assets and debts.

What if my spouse cheated on me or committed bad actions that caused the marriage to end – does the Court still give each spouse 50% of the community property? The answer to this question is – the Court can consider bad actions of the spouses when dividing community property. If there is significant bad action on the part of one spouse, the Court can choose to make an unequal division between the parties, awarding the non-offending spouse a larger portion of the community property.

Q:

What is separate property?

A:

Separate property is defined under the Texas Family Code into three categories:

  1. the property owned or claimed by the spouse before marriage.

  2. the property acquired by the spouse during marriage by gift, devise, or descent; and

  3. the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Each spouse carries the burden of proving what is his or her separate property.

Q:

Do I qualify to receive alimony? Or – will I have to pay alimony?

A:

There are two types of spousal support that exist in Texas: “court ordered spousal maintenance” and “contractual alimony.” There are major differences between these two categories, including the length of payment, amount of payment and other conditions. Texas law does not favor awarding spousal maintenance or alimony. There are very few circumstances under the law where a spouse will qualify for maintenance –if you are unable to support yourself due to a disability, or unable to work because you must care for a child with a disability, or if your spouse has been physically abusive to you, the court may award some type of maintenance.

Q:

What are my rights regarding my children?

A:

In a divorce, if both parents are fit and safe, it is presumed that they will be appointed "Joint Managing Conservators" of the child. This term means the parents have joint legal rights and duties with regards to the child. Below are the joint legal rights and duties that each joint managing conservator has regarding the child under the Texas Family Code:

  1. to receive information from any other conservator of the child concerning the health, education, and welfare of the child.

  2. to confer with the other parent to the extent possible before deciding concerning the health, education, and welfare of the child.

  3. of access to medical, dental, psychological, and educational records of the child.

  4. to consult with a physician, dentist, or psychologist of the child.

  5. to consult with school officials concerning the child's welfare and educational status, including school activities.

  6. to attend school activities, including school lunches, performances, and field trips.

  7. to be designated on the child's records as a person to be notified in case of an emergency.

  8. to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and

  9. to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.

Texas Family Code Section 153.023

And the parent also has the following rights and duties of the child during his or her possession of the child:

  1. the duty of care, control, protection, and reasonable discipline of the child.

  2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.

  3. the right to consent for the child to medical and dental care not involving an invasive procedure; and

  4. the right to direct the moral and religious training of the child.

Texas Family Code Section 153.074

Q:

What is “primary custody?

A:

Even if both parents are appointed joint managing conservators of the child, there is still normally one parent that is considered the “primary parent” in a divorce or child custody order. The right that makes a parent “primary” is the “right to designate the primary residence of the child,” and this right is found in section 153.132 of the Texas Family Code. This right to designate the primary residence of the child is not automatically awarded by the Court to the mom as you will often hear from non-lawyers. In fact, under the law, the Court cannot consider gender or marital status when making a custody determination. In many cases, the parents agree as to which parent gets to be the “primary” parent. If the parents cannot agree as to which parent gets this right, the Court will look at the facts and the evidence presented by the parties and decide as to who shall get this right. A parent can also ask under Texas law that neither parent have this primary right to designate, but instead the child’s residence would be restricted to a certain location, such as a school district or a county. Another important aspect of this “primary right” is that the court can restrict the location in which the residence of the child is designated, such as McLennan or Harris County. Even if you are a parent who has agreed to give the other parent this primary right, make sure to remember about location and geographic restrictions on this right.

There are other rights and duties under section 153.132 that are very important and are NOT automatically awarded equally to both parents. The following rights and duties can be exercised exclusively by one parent, or by both parents after agreement, or by each parent independently.

  1. the right to designate the primary residence of the child.

  2. the right to consent to medical, dental, and surgical treatment involving invasive procedures.

  3. the right to consent to psychiatric and psychological treatment.

  4. the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child.

  5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.

  6. the right to consent to marriage and to enlistment in the armed forces of the United States.

  7. the right to make decisions concerning the child's education.

  8. the right to the services and earnings of the child.

  9. except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government; and

  10. the right to:

    1. apply for a passport for the child.

    2. renew the child's passport; and

    3. maintain possession of the child's passport.