The purpose of this pamphlet is to explain the general procedures for getting a divorce in Texas. This pamphlet in NO WAY covers all the topics associated with divorce but hopefully will assist you in understanding the steps necessary to obtain a divorce. Texas' state law and procedures for divorces are set forth in the Texas Family Code, which may be viewed on the State of Texas' website for free. For specific questions on your case, you may contact The Brashear Law Firm, PLLC by calling (281) 994 - 4034 and asking for one of the members of our Family Law Department - Jeffrey Brashear Emily Gelman or Paralegal Tina Favorito.
A marriage is a partnership between wife and husband. A divorce is a procedure for dividing up the partnership. A typical divorce decree will cover a few primary areas: (i) division of any community property; (ii) child custody (if applicable); and (iii) child support (if applicable). Without the decree covering those areas, the decree may not be valid. The Family Code will not allow you to get a divorce and then "work out" child custody and/or child support at a later time. It is always more beneficial for the parties involved to decide their own destiny vice having a judge decide for you. If the parties can decide how to divide their community property, child custody, and child support; the court will generally go along with what the parties agree to. There is NO LEGAL SEPARATION in Texas. You are married or you are divorced. process, the more the Wife and Husband fight; the more it will costs both of them. It will costs both more financially, emotionally, and psychologically.
What is the Cost Associated With a Divorce?
Generally, attorney fees will vary based on experience, current case load, and difficulty of case. You may generally expect that you will get what you pay for. The less you pay for the divorce, the less time you may expect to spend with the attorney. Most attorneys use legal assistant trained in divorce who can answer many of the most common questions but do not expect a lot of personal attention when you have selected the attorney that charges the least amount of fees. A contested divorce can be extremely expensive. Most divorces are contested because of a dispute or disagreement between the parents about who will have custody of the children. Typically, attorneys charge a wide variety of hourly rates ranging from $150 per hour to as high as $500+ per hour. The estimated costs of a full-blown contested divorce can range anywhere from $25,000 to $75,000+ depending upon the law firm and the work that is done. You should expect to pay your attorney up front.
Starting the Process
Once a party retains an attorney, an original petition for divorce will be filed with the court having jurisdiction.The petition will set out some basic information about the wife, husband, children and ask the court to grant the divorce based on one or more of the grounds in the Texas Family Code. Majority of Texas divorces are "no-fault." If one party does not want the divorce; they can not stop the proceedings from happening just because they do not want to. If one of the party's can prove "fault" on the other party, the court may award an unequal division of the community property. One of the party's must have been domiciled in Texas for at least 6 months and a resident of the county which the divorce is filed in for at least 90 days prior to the divorce being granted. There is a sixty (60) day waiting period from the time the petition is filed until the divorce can be granted.
Serving the Opposing Side
Once the petition has been filed, the other side has to be notified that they have been sued for divorce. Generally, there are two primary forms for this official notification - waiver of citation or service. The waiver has to be signed by the opposing side, notarized and then submitted to the court. The waiver basically says that the party signing received a copy of the petition and does not intend to contest the divorce and that the divorce proceeding may continue without any further notice or input to the divorce. This waiver of citation will allow the party presenting to proceed with the divorce decree in whatever fashion they want. Therefore, DO NOT SIGN A WAIVER WITHOUT SPEAKING TO AN ATTORNEY. If there is no waiver, then that party MUST be served with a copy of the petition under TX Rules of Civil Procedure. The opposing side gets until the Monday following the 20th day after service to file an answer with the court.
Temporary orders are court orders intended to provide protection to the parties until the divorce is granted. Generally, if it appears that the divorce may be contested and will not conclude in sixty days, either party may request the court to enter temporary orders. These temporary orders may include things such as: temporary spousal support, temporary custody of child(ren), preservation of the community property, and injunctions for creating debts and/or harassment. If the parties have disagreements about the terms that go in the temporary orders, then their will be a hearing; which is called a "show cause hearing." At this "show cause hearing," the parties may put on evidence and testimony in support of their specific requests. Some courts will not hold a "show cause hearing" until the parties have attended mediation in an attempt to come to some agreement. Without temporary orders, either spouse may take the children, drain the bank accounts, terminate credit cards or sell vehicles
The default rule in Texas is everything is presumed to be community property unless it is proven otherwise. Community property is generally all property acquired during the marriage, with the exception of gifts or inheritances. Personal injury awards are not considered community property, unless it is for medical expenses acquired during the marriage or for repayment for lost earnings during the marriage. Generally, the court will divide the community property equally between the parties, so long as no fault is the basis for the divorce. If fault is alleged and proven, the court may award an unequal distribution of the community property. During the marriage, debts created by either party are usually community debts. That means that both parties are obligated to pay these community debts. The rights of creditors to collect these debts can not be affected by an agreement between the parties or by a court order. The court can order a party to be responsible for paying one specific debt.
The "Best Interest of the Child(ren)" is the basis that the court will use in awarding custody. Generally, the courts do not favor having the child split up between the spouses. Additionally, the courts do not favor the children traveling back and forth between the parents so that the parents can have equal custody. The courts, generally, want the child(ren) to have a stable home environment primarily and the parents desires come secondary. There are a few different variations regarding labels assigned to parents - Sole Managing Conservator is the parent that is granted certain exclusive rights to make decisions for the child(ren) and Joint Managing Conservator is when one of two or more people who share the rights and duties of a parent. Texas Courts must award joint custody unless good cause exists for not doing so. Joint Custody does not require that the child(ren) has to spend equal time with each parent; it just means that each parent has an equal say in raising the child(ren).
Texas Family Code sets out a standard possession order. Generally, visitation for the non-custodial parent is: the first, third, and fifth weekends from 6:00 p.m. on Friday until 6:00 p.m. on the following Sunday; every Wednesday from 6:00 p.m. until 8:00 p.m. or until school resumes next day; alternating holidays; child's birthday; and four weeks during the summer. Additionally, the custodial parent turns over the child(ren) to the non-custodial parent at the beginning of his/her visitation and the non-custodial parent must return the child(ren) at the end of the visitation. The child(ren) must go with the non-custodial parent even if the child(ren) do not want to. If a parent fails to follow the possession order, that parent could be held in contempt by the court; which might result in that parent being fined, jailed, or both. Failure of a parent to pay child support is NOT grounds for denying child visitation.
Both parents are expected to support their child(ren) by the Court. The needs of the child(ren) and the earning abilities of the non-custodial parent are used to calculate the basis of the child support amount. Texas Family Code provides the formula for the amount of child support and this formula is presumed to be in the Best Interest of the Child(ren) - One Child = 20% of net resources, Two Children = 25% of net resources, Three Children = 30% of net resources, Four Children = 35% of net resources. "Net Resources" is defined as all income received from all sources minus income tax, social security, and medicare. Income received from all sources includes: overtime, second jobs, etc. A parent who refuses to work will not get a pass on his/her child support obligations. Generally, the court will infer minimum wage as the amount of income received by the paying parent. Additionally, if the paying parent takes employment that pays less, that less paying job will not allow a reduction.
Alimony in Texas is called "maintenance." The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage. To be eligible to receive spousal maintenance, the party must prove that he/she - is a spouse and has met the statutory requirements for claims based on a ten-year marriage or family violence. The court will consider a multitude of factors in determining whether a spouse is eligible to receive maintenance. Generally, it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in - seeking suitable employment or developing the necessary skills to become self-supporting during any period of separation and during the pendency of the divorce suit. This presumption does not apply to a spouse who has an incapacitating physical or mental disability. Courts are limited on the amount that can be ordered.
The State of Texas' policy is to promote the amicable settlement of divorces through alternative dispute resolution. Either party may ask for mediation of their temporary orders or divorce. The parties can agree on a mediator or the court can appoint one if the parties can not agree. Basically, a mediator is a person who is trained to help people come to a mutually acceptable agreement to settle their dispute. A mediator has not authority to force either party to settle their case but if the parties do come to an agreement, it will be written down, signed by both parties and just as enforceable as an order of the court. Generally, both parties equally share the costs of the mediator.
Final Items to Think About
Always remember that a divorce is extremely hard and difficult on the child(ren). It never is a good idea to use the child(ren) as a weapon against you spouse. Nor do you want to use your child(ren) as messengers. You are NOT divorcing your child(ren), but you are divorcing your spouse. Additionally, you and your spouse will ALWAYS and FOREVER be the child(ren)'s mother or father. Your child(ren) truly need you and your spouse during this trying time in their lives. You and your spouse WILL have to communicate until the child(ren) reach the age of majority; therefore, you SHOULD begin trying to get along for the child(ren)'s benefit. Finally, do not take out your frustration, anger, or bitterness on your child(ren).
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