Frequently Asked Questions
At The Romero Law Firm, P.C., we are presented with some frequently asked questions in divorce and custody disputes. On this page, we have attempted to answer some of the more commonly asked questions. Nothing on this page should be considered an acceptable substitute for personalized legal counseling, because circumstances differ.
Most jurisdictions have a waiting period. In Texas, you must wait 60 days from the time you file until your divorce is final, even if the divorce is uncontested. If the parties have come to an agreement on all issues, then a divorce can be finalized on the sixty first day after the divorce was filed.If an agreement cannot be reached, and the case has to be tried tby a judge or jury, then the time period will depend on the Court’s schedule.
On what basis may a divorce be granted?
Texas law provides the following grounds for divorce:
- Conviction of Felony
- Living Apart
- Confinement in Mental Hospital
All of the above grounds are considered fault grounds, except for insupportability, which is considered a no-fault ground for divorce.
On what basis may an annulment be granted?
Texas law provides the following grounds for annulment:
- Annulment of Marriage of person under Age 18
- Under the Influence of Alcohol or Narcotics
- Fraud, Duress or Force
- Mental Incapacity
- Marriage Less than 72 Hours after Issuance of License
What is a legal separation?
Texas law does not recognize legal separation other than temporary orders rendered by a Texas Court. Although parties can and often do enter into mutual informal agreements concerning the children and property, these agreements are not binding on the Family Court. However, the Court may consider the agreements as evidence, but the controlling factors absent an agreement will be in the best interest of the children.
How can a marriage be declared void?
- Recognition of same-sex marriage or civil union
- Marriage to minor
- Marriage to stepchild or stepparent
Does fault make a difference?
The fault or wrongdoing of a party in a divorce action is one of many factors that has an effect on how assets that were acquired during the marriage will be divided. Also, the fault or wrongdoing of a party may be a factor that the court may take into consideration to determine custody and possession of the children.
How will our assets be divided?
The Texas Family Code states that property in a divorce is to be divided in a manner that the judge deems “just and right.” The Court may look at a variety of factors to divide the community property of the spouses, such as projected future earnings of the parties, who is at fault for the divorce, disparity in the amount of separate property and other criteria in making the division.
Is the judge going to split the property 50/50?
Not necessarily.The judge will look at the couple’s accumulation of assets and will divide the assets in a “just and fair manner.” In determining the division of property, what the Court considers just and fair will be determined based upon fault in the break-up of the marriage, education of the parties, future earning potential of the parties, and disparity in the amount of separate property.
Can I request a jury trial in my divorce?
In a contested divorce, a party can make a request for a jury trial. If you want a jury trial, it must be formally requested prior to the trial date. A party can decide to have a jury hear the testimony of the witnesses and render a decision on all of the issues of the case.
Why should I hire a lawyer?
Family Law is a complex area of law. The outcome of your divorce case will have serious repercussions on your family’s future. By having sound and knowledgeable legal representation, you can safeguard that future.
What are my rights during the divorce process?
You have the right to seek support for yourself and your children, custody of or visitation with your children, attorney fees, servicing of marital debts, and injunctions, if appropriate.
What are the Child Support Guidelines?
The Texas Family Code provides guidelines that the Family Court uses to determine the appropriate amount of child support that should be awarded. The guidelines provide for child support based upon net monthly income up to $7,500.00. Net income is multiplied by a percentage rate established for the number of children before the court — that is, 20 percent for the first child and an additional 5 percent for each additional child. Percentage adjustments are also made for the number of children not before the court who are owed a duty of support by the non-primary custodial parent.
However, you may negotiate child support amounts above or below those in the Guidelines. In addition, the Texas Family Code provides certain factors that the Court may consider in determining appropriate child support that vary from the Texas Family Code Guidelines.
Can I exclude the other party from the family residence?
Once a divorce has been filed, we can request that the other party be excluded from the family residence if you are a victim of domestic violence or verbal harassment. If you are the victim of physical abuse, you should call the police for protection. You may get an emergency order from a Family Court Judge to exclude your spouse immediately from the residence. A hearing is held within 10 days to determine if there is enough evidence to keep your spouse from returning home on a permanent basis.
How does the Court determine custody?
In Texas, joint custody is the presumption if both parents have shown to be active in the children’s lives during the marriage. Otherwise, the Court will determine the custody arrangement based upon the best interests of the children. In determining custody and visitation, the Court will hear testimony from both parties, experts they want to present, and other witnesses who have knowledge of each spouse’s parenting ability.
Texas Courts have considered a variety of factors in ascertaining the best interest of the children, including the following: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent–child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. This list is not exhaustive by any means, but it does indicate a number of considerations that either have been or would appear to be relevant and pertinent.
Do I have to pay child support?
In most cases, the Judge will order the spouse who does not have primary custody to pay child support. The amount of child support is determined using the Family Law Guidelines of the Texas Family Code and is based upon income.
Can my spouse and I use the same attorney?
No. A divorce proceeding is adversarial, and one attorney cannot represent the best interests of both spouses. There may be certain results that you wish to obtain in the divorce that are not in the best interest of the other spouse. As soon as the differences arise, a conflict develops that makes joint representation impossible. However, in uncontested cases, an attorney can draft all of the documents but can represent only one of the parties.
How much will my divorce cost?
The total cost of your divorce is difficult to predict. The nature and extent of the assets, the complexity of the legal issues, nature and extent of separate property, tracing of separate property, and the cooperation of the parties — all of these are significant factors that the attorney will use to determine the cost of the divorce representation.
What do I need to win my divorce?
After hiring an experienced matrimonial lawyer, you should try to secure three to five years of financial documents pertaining to property, accounts and tax returns. These documents will be used later as evidence in your case.
What are the chances that my divorce will not be tried on the scheduled trial date?
The Court usually schedules many cases to be tried on the same trial date. It is impossible for the judge to hear all of these cases on the same day; therefore, preference may be given to the cases that have been on file longer. Although your case may not be tried on the scheduled date, the Court will re-schedule your trial date to a later date so that your case may be heard.
Can I get alimony in Texas?
In Texas, we have Spousal Maintenance available to divorcing spouses in limited circumstances. There are generally two circumstances that would qualify to have a judge order maintenance in a divorce: (1) if a spouse is convicted of family violence or (2) if the marriage was 10 years or longer. Only if these circumstances exist will there be consideration of spousal maintenance, and the spouse must show that he or she does not have sufficient resources to provide for his or her minimal needs.
Do I have to go to mediation?
In Texas, most courts now require the parties to mediate the case before the trial date. Mediation is usually a non-adversarial approach to resolve disputes with the help of an impartial third party.