Answers to Common Questions in a Texas Family Law
The Marriage Relationship
1. What is a Common Law or Informal Marriage?
A man and a woman may enter into an informal marriage if 1) they agree to be married, 2) live in Texas as husband and wife, and 3) represent to others in Texas that they are married. There is no minimum time period required, but both parties must be 18 years or older.
2. What if we were not married in Texas or the U.S.A.?
Where a man and a woman are married does not matter to invoke the jurisdiction of the Texas courts on family law matters (e.g., divorce).
Marital Property Rights
3. What is the difference between Separate and Community Property?
Separate property is that property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance, and can include recovery for personal injury. It is presumed that all property acquired by the parties during the marriage is community property.
4. How is community property divided between spouses in a divorce?
The judge divides community property and liabilities in a "just and right" manner that may result in the judge awarding more community property to one spouse. In making the division, the judge can consider any relevant factor, which might include evidence of:
a. Fault in the break-up of the marriage
b. Differences in earning capacities and education c. Age and health of the parties d. Any special needs of the parties e. Separate property or potential for inheritance of either spouse
5. What is a Qualified Domestic Relations Order (QDRO)?
A Qualified Domestic Relations Order (QRDO) is required when IRS qualified retirement plans (e.g., IRA or 401k plans) are divided in a divorce. The QRDO must meet the requirements of the retirement plan involved.
6. How long does it take to get a divorce?
The minimum wait period from the filing of a petition for divorce is 60 days when the parties agree on all terms. Most contested divorces can be concluded within 9-12 months, but some take longer.
7. How long does it take to get some interim relief?
If interim relief is needed before the entry of the Final Decree of Divorce, a request for temporary orders is filed with the petition for divorce along with a request for hearing on the temporary orders. A hearing on temporary orders can usually be obtained within two weeks of the filing of the request, but the timing on this depends on the court’s schedule and may take longer. Interim relief can be obtained for such things as who gets use of the house or other property, child support, and spousal support.
8. What is the difference between a "fault" and "no-fault" divorce?
In Texas, a divorce may be granted without either party being at fault. A divorce may also be granted when one party is found to be at fault in the break-up of the marriage (e.g., adultery or cruelty). Generally, a fault based divorce is plead to provide a basis for an unequal property division or faith based reasons.
9. Will I have to pay/be able to receive court-ordered alimony?
Before a divorce is finalized, all income to the marriage relationship is community property, so it is relatively easy to have the Court order interim spousal support, depending on the circumstances of the parties and what the Court considers necessary and equitable. For the Court to award alimony after a divorce is finalized is possible, but more difficult and the circumstances must meet certain statutory requirements in the Texas Family Code.
The Parent-Child Relationship
10. How is child support determined/is it required?
Generally, the Courts in Texas require payment/receipt of child support in some form. Child support is set according to a formula based on the net resources of the parent paying without regard to the parent receiving the support. Net resources are determine using a table in the Texas Family Code and includes salary, commissions, overtime, bonuses, dividend income, lottery winnings, etc., etc. If the person paying has no other children than those before the Court, the percent of net resources will be 20% for 1 child, 25% for 2 children, 30% for 3 children, 35% for 4 children, and 40% for 5 children. There are caps and other considerations on child support amounts that may affect some individual payors.
11. Does joint custody mean the child lives half the time with each parent?
No. Joint custody, otherwise known as joint managing conservatorship is a sharing of the rights, duties, and powers parents have concerning their children. The Courts generally find that it is in the best interest of the children to have a primary residence because of school considerations.
12. What is standard visitation under the Texas Family Code?
A Standard Possession Order (SPO) is defined by the Texas Family code and provides for parents that live within 100 miles of each other and for parents that live outside of 100 miles of each other. For parents living within 100 miles of each other, the SPO provides for possession by the parent not establishing the primary residence on the 1st, 3rd, and 5th weekends of the month, Wednesday evenings during the school year, sharing of holidays and spring break, and extended summer visitation.
13. My child has come to live with me/has asked to live with me...can I get a modification?
If a child is 12 or older, the judge should interview the child to determine the child's wishes. This is not binding on the judge, however. Now, when a child is 15 or 16, more likely than not it will happen. For children under age 12, without an agreement of parents, or a major negative change in the behavior of the child or of the parent establishing the residence, modification of child custody can be more difficult because the best interest of the child is usually stability in his/her home. Whether a contested modification has a good chance of success is dependent on the facts of the individual case.
14. Is there a time limit on getting a court to adjudicate the father of a child?
Yes. If the child does not have a presumed, acknowledged, or adjudicated father, the suit to determine parentage may be filed at any time. Generally, if the child has a presumed father, a suit to determine parentage must be brought before the child’s fourth birthday (there are exceptions).
15. Who can file a Paternity Action?
The following people may file a paternity action: 1) the mother; 2) the man who wants to determine his parentage; 3) a relative of the child’s mother or alleged father if that parent is deceased; 4) the child; 5) a government agency; or 6) any person closely related to the mother of the child if the mother is deceased.
16. Can I recover attorney’s fees and court costs in a paternity action?
Yes. The court must order recovery of attorney’s fee since this action is in the nature of child support. Adoption
17. What is involved in the Adoption process?
Before an adoption can be finalized, the parental rights of the birth parents must be terminated. A petition for adoption must be filed with the proper court, and the child must live with the adoptive parents for at least six months. An ad litem for the child may be appointed and a social study, background check, and criminal history check of the adoptive parents must be performed. A health, social, education, and genetic history report of the child may also be required. Once these matters have been completed, a hearing is held with the court to determine that the adoption is in the best interest of the child.
18. Do I get a new birth certificate for my adopted child?
Yes. The new birth certificate looks identical to any other birth certificate. The parent information names the adoptive parents and does not indicate that the child was adopted.
Change of Name
19. What are the requirements for a name change of an adult?
With the court’s approval, an adult can have their name changed as part of a divorce proceeding or a separate lawsuit if not part of a divorce. The court will not grant the change if the change is to either avoid criminal prosecution or defraud creditors.
20. What are the requirements for a name change of a child?
With the court’s approval, a child name can be changed. The other parent is entitled to notice of the lawsuit filed to change the name.
Family Violence: Protective Orders
21. What is family violence?
Family violence is an action or the threat of an action by a member of a family or household against another member of the family or household that is intended to cause physical harm, bodily injury, physical assault or sexual assault or reasonable fear of such action. Abuse toward a child of the family or household and dating violence is also family violence.
22. What is dating violence?
Dating violence is an action or the threat of an action by a person against another person with whom they have or have had a dating relationship that is intended to cause physical harm, bodily injury, physical assault or sexual assault or reasonable fear of such action.
23. Who can file a protective order?
a. For family violence, any adult in a household can file for themselves or any other member of the household, including a child who needs protection. b. For dating violence, any adult member of the dating relationship can file for themselves. c. Any adult may apply for a protective order to protect a child from family violence.
Enforcement of Court Orders
24. What is enforcement?
Enforcement is when a lawsuit is filed against a person for violating a court order.
25. What orders can be enforced?
Orders for any of the following may be enforced by a family court:
a. Child support b. Child visitation c. Property division ordered in a divorce d. Spousal maintenance (alimony)
26. Can I recover attorney’s fees and court costs in the enforcement action?
Yes. Attorney’s fees and court costs are generally recoverable in any suit to enforce a court order. The court may order a person to pay attorney’s fees and court costs as a condition of a suspended jail sentence, as well.