Frequently Asked Questions about Divorce
1. How much is it going to cost?
We make every effort to resolve cases simply and efficiently, to minimize the costs for our clients. In addition, clients can do many things to help reduce their legal fees. We can discuss these approaches with you during an office visit.
We bill by the hour. The total number of hours varies widely, and is dependent upon the complexity of the property, child custody issues and other complicated factors.
Legal fees are incurred based on the attorney's hourly rate, the legal assistant's hourly rate, and the number of hours required to bring the case to resolution. In general, the more complicated and contested the case, and the longer it takes to resolve, the higher the legal fees. Cases that must be tried are always more expensive than those that can be settled out of court.
For all new clients, payment of an initial retainer is required. For detailed information on the firm's payment and billing policies, we encourage clients to speak with their attorney or their legal assistant.
2. How long will it take?
As the first official step in all cases, a Petition for Divorce is filed with the court. The petition must be on file for at least 60 days before a final decree can be entered. Thus, a divorce takes about two months at an absolute minimum.
On average, most cases that require the services of our firm are finalized within six to eight months. The more complex and contested the case, the longer it will take. An overview of the step-by-step process is available at Litigation Process.
3. Can my spouse prevent me from getting a divorce?
No. Texas is a no-fault state. A party must only allege conflict of personalities in order to obtain a divorce. Although your spouse cannot prevent the divorce, a spouse that does not wish to be divorced will often take steps to delay the process.
4. Can my spouse and I hire the same lawyer?
No. In Texas, an attorney may not ethically represent both sides of the litigation.
If the parties are reasonably amicable and both are motivated to contain fees, they may wish to consider Collaborative Divorce. Under this model, each spouse retains separate counsel, but their two attorneys work more collaboratively to craft mutually agreeable solutions. For parties that can work together to resolve their issues, a Collaborative Divorce can offer a less adversarial and less expensive approach.
5. Can I recover attorney's fees from my spouse (or former spouse in cases of modification)?
In limited cases, yes. There are, however, many factors that are taken into consideration, including fault in the break-up of the marriage and differences in earning capacities of each of the parties.
6. What is community property, and how does it differ from separate property?
Texas is a community property state. This means that all property and income obtained during the marriage (whether by the husband, the wife, or both) belongs jointly to the husband and the wife. By law, community property must be divided in a "just and right" manner, and not necessarily 50/50, at the time of divorce.
In some circumstances, an unequal division of community property is found to be "just and right." For example, a spouse whose earning capacity is significantly greater, and who is at fault in the break-up of the marriage, might receive less community property in the divorce.
By contrast, separate property is not divided with one's spouse at the time of divorce. Under Texas law, separate property includes: property owned prior to the marriage, gifts to the individual, the individual's inheritance, and certain parts of personal injury settlements. Property purchased with separate property during the marriage remains separate property if it can be properly "traced."
7. Are my employment benefits, including retirement funds and stock options, community property?
Employment benefits that accrued during the marriage are community property. This includes retirement accounts in one spouse's name. Employment benefits such as retirement funds that predate the marriage are separate property.
Stock options granted during the marriage may be community property, even if they do not vest until after the marriage ends. However, Texas law is complicated regarding stock options; please speak with your attorney.
8. What is custody, and what is joint custody?
Custody is a lay term and it does not have a specific meaning under Texas family law. In general usage, people often refer to the parent with primary possession of the child(ren) as "having custody." The Legal term for Custody in Texas is "Conservatorship".
"Conservatorship" means the right to make the major decisions about the child(ren)'s lives, such as where they will go to school, their health care, etc. In Texas, joint conservatorship is presumed to be in the best interest of the children.
Joint conservatorship is not granted in situations where one parent's abuse, family violence, neglect, serious mental illness, or other serious problems pose a threat to the children. In such situations, typically one of the parents will be appointed as "sole managing conservator" and the other parent will be appointed "possessory conservator". The sole managing conservator will make all major decisions and the possessory conservator will only have a right to possession pursuant to a specific possession schedule depending on the circumstances of the case. Please speak with your attorney about these circumstances.
Divorcing parents typically need to craft a joint conservatorship agreement. This establishes their legal relationship as joint-conservator parents, and specifically sets out how certain decisions will be made regarding the children in the future. If the parents are unable to make an agreement the Court will determine the terms of the conservatorship arrangements.
Joint conservatorship does not mean equal possession. It does not mean that the children will spend half of their time in each home, or that one spouse will not pay child support to the other. In a joint managing conservatorship, parents will share the making of major decisions regarding their children.
9. What is possession, and what is "standard possession" of children in Texas?
Possession refers to the time that the children spend with each parent. In most cases (excepting those where one parent has a history of abuse, family violence, or other serious problems), possession is shared. This means that the child(ren) will spend part of their time living in each parent's home.
Any possession arrangement on which both parents agree is an option, provided that it is in the best interest of the child(ren). For parents who cannot devise a mutually agreeable solution, or who simply wish to follow a standard model, the Texas Family Code sets out a standard possession schedule for children.
Standard Possession provides for the child to live a majority of the time in the home of the "primary parent." The child then spends specified times living in the home of the other parent.
Standard Possession provides for the other parent to have the child every Thursday evening, first, third and fifth weekend (from Friday evening to Sunday evening), alternate major holidays, and for 30 full days in the summer. Altogether, this adds up to about one-third of the child's time, outside of school hours. An expanded Standard Possession increases this schedule to include pick up from and return to school as well as Thursday overnights.
We strongly encourage our clients to carefully consider the desires and best interests of the children in working out possession schedules. In the case of young children, the agreement might specify that possession will be revisited when the child becomes an adolescent, or at other milestones in the child's life.
Existing possession schedules are subject to revision, through a process known as modifications. Please discuss this with your attorney.
To review the Standard Possession section of the family code, click here: Texas Family Code Sections 153.311 - 153.317.
10. Can my spouse make me stay in Travis County?
Yes, if both will share joint custody and possession of the children. A domicile restriction may become part of the legal documents, if the court or the parents determine that it will be in the best interest of the children.
11. How much child support will I have to pay?
Please refer to the chart at Texas Family Code at Section 154.125
12. How soon can I begin receiving child support?
If the parties are unable to make temporary agreements at the beginning of the case, it is very common for a temporary hearing to be held within the first few weeks of filing for divorce. At this hearing the court can determine temporary child support, temporary alimony, temporary custody, temporary visitation and temporary use of the home.
13. Can I get alimony?
In Texas, alimony is called "spousal maintenance" and there are two kinds of spousal maintenance: contractual and court-ordered. Court-ordered maintenance is rare and can only be granted in cases of family violence, or after a marriage of at least 10 years. A significant difference must exist between the earning capabilities and/or financial assets of the two partners. The party seeking maintenance must be able to show true financial hardship.
However, the two spouses can agree to "contractual maintenance." This is an allowance paid for a specified number of years, during the separation and/or after the divorce. The payments are reported as income to the person receiving them and taxed accordingly.
For example: The parties might agree that maintenance payments are just and equitable if one spouse has been the sole income producer for the family and continues to earn a substantial income, while the other spouse has never worked outside the home but has made significant contributions to supporting the wage-earner's career. Contractual maintenance is often used as part of a property settlement. Individual agreements must be negotiated that are acceptable to both parties. Please speak with your attorney about whether maintenance might be an option for you.
14. When am I required to go to mediation, and can I do this without a lawyer?
In Travis County, the parties are required to attempt to resolve their differences at mediation, before proceeding to a final trial. (Please see discussion of mediation.)
Individuals are not required to have an attorney present at the mediation session. However, it is very much in their best interests to do so. Texas property law, and laws regarding the conservatorship and possession of children are complex. It is unlikely that the individual will be best-served in the negotiation without an attorney present who is familiar with the intricacies and interpretations of the law.
In cases where children and community property are not factors, an attorney may not be needed at mediation. However, these cases rarely proceed to trial.
15. Where can I get more information about Texas family law?
The Texas Family Code is available at Texas Legislature Online.