|
Frequently
Asked Questions on the Divorce Process
How long does it take to get a
divorce?
Do I need a "legal
separation" from my spouse?
Where can I file for
divorce?
How is property
divided between spouses in a divorce?
What is the difference
between separate and community property?
How is child
support calculated?
What is "standard"
visitation?
What are temporary
orders?
If my spouse and I
have agreed to all the relevant terms, what is the general procedure for
obtaining and finalizing the divorce?
Do I have to show fault to get a divorce?
1. How long does it take to get a divorce?
If the spouses have reached an agreement on all of the relevant issues a
divorce may be obtained on the 61st day after the divorce petition was
filed. If an agreement is not possible and the case must be tried, the
length of time is primarily dependent on the Court's docket. In Harris
County, most divorce cases are set for trial within six to twelve months
after the divorce petition is filed.
2. Do I need a "legal separation" from my
spouse?
While some states recognize a legal status known as "legal separation,"
Texas does not. Under the Texas Family Code spouses are married until
the Court grants a divorce.
3. Where can I file for divorce?
You can file for divorce in a county in which either you or your spouse
has lived for at least 90 days, as long as that same person has lived in
Texas for at least six months.
4. How is property divided between
spouses in a divorce?
The Texas Family Code requires that the Court divide the community
property of the spouses "in a manner that the Court deems just and
right." This means the Court is not required to divide the property
50-50 and can consider a variety of factors in deciding what is "just
and right." These factors can include fault in the divorce, disparity in
earning power, disparity in amount of separate property, etc.
5. What is the difference between separate and
community property?
Generally, a spouse's separate property is property that was either:
- owned by the
spouse before marriage
- acquired by
gift or inheritance, or
- certain kinds
of recoveries for personal injuries
Community property is
all property other than separate property. All property owned by either
spouse at the time of marriage is presumed to be community property. The
party that is asserting the claim of separate property has the burden of
proof on that issue.
6. How is child support calculated?
In most cases, child support is calculated using a formula in the Texas
Family Code. The payor's monthly "net resources" (a term defined by
statute) is multiplied by a percentage which is determined by the number
of children at issue (e.g., the percentage for one child would be 20%).
The payor is entitled to a reduction if he or she is also responsible
for the support of another child.
7. What is "standard" visitation?
Most divorces involving children name one parent as the primary Joint
Managing Conservator and grant the other parent (also a Joint Managing
Conservator) "Standard Possession Order" visitation. The visitation is
spelled out in great detail in the statute (Texas Family Code Section
153.312) and should also be spelled out in detail in the Final Decree of
Divorce. A very short hand version of a typical visitation order
(assuming both spouses reside within 100 miles) is as follows: the 1st,
3rd, and 5th Friday of every month from Friday (beginning at either
school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m.,
every Thursday beginning at either school dismissal or 6:00 p.m. and
ending either at 8:00 p.m. that night or when school resumes the
following morning), as well as 30 days in the Summer, and additional
visitation periods for Spring Break, Thanksgiving, and Christmas,
depending on whether it an odd or even numbered year. While Standard
Possession Order is the most common visitation schedule, it may be
inappropriate depending on the particular case.
8. What are temporary orders?
Temporary orders are orders issued by a court, after either a hearing or
an agreement by the parties, which are designed to last until the
divorce is final. Practitioners sometimes refer to them as "band aid"
orders. Temporary orders commonly address issues such as child support,
custody and visitation of the children, exclusive use of the marital
residence, exclusive use of vehicles, alimony, and interim attorneys
fees.
9. If my spouse and I have agreed to all the
relevant terms, what is the general procedure for obtaining and
finalizing the divorce?
It is common for spouses to believe that they have an agreement, but
they actually have not addressed all the necessary terms, such as child
custody or support, or property division. Assuming all required terms
are agreed to in advance of filing, the divorce can be a relatively
simple legal procedure. The attorney for the Petitioner (the filing
spouse) files the divorce petition and either has the petition served on
the other spouse or the other spouse executes a Waiver of Service. The
Petitioner's attorney then drafts an Agreed Final Decree of Divorce and
any other necessary documents which are reviewed and signed by the other
spouse. The other spouse is free to hire or consult with an attorney of
his or her own. After the necessary papers are signed by the parties and
attorneys, the Petitioner and his attorney then go to court for a
hearing to have the Court enter the Decree and other documents.
10. Do I have to show fault to get a divorce?
Texas is a no-fault divorce state which means that it is unnecessary to
show that either party was at fault in order to obtain a divorce. It is
only necessary to show that there is marital discord and there is no
reasonable expectation of reconciliation. However, many fault issues
(adultery, cruelty, etc.) are frequently relevant factors in divorce
cases because they can have an impact on how the community property is
divided, or how custody is decided.
Life Time Planning Seminars to help with financial decisions,
especially for women.
Forms
Materials to Bring to Mediation
Sign up for
divorce mediation
Return to the Top
Get started on your financial information.
When divorce becomes
unavoidable, use this unique interactive software
to leave
your marriage with your dignity intact and money in your pocket.
Do you own preliminary
work.
 |
