This page gives you, the non-lawyer reader, an introduction to the most common questions I have encountered in my practice of family law in Texas. For your convenience, the questions, along with the answers, have been prepared in simple, non-legal, plain English. However, every person's problem is unique. For direct answers to your specific personal questions, please
contact one of our attorneys directly.
The below are simply answers to commonly-asked questions. Every single case is unique, and deserves individualized attention to details. The below is not intended as the providing of legal advice, and does not create any sort of attorney-client relationship between the reader and the attorneys of The Powell Law Firm. It is intended merely for informational assistance.
1. Where do I have to file for divorce?
You may file for divorce in either the county where you or your spouse resides. However, there are certain time limitations discussed below that may affect this. If you have recently moved from one county to another, you need to have been a resident of the new county for at least 90 days before you may file there.
2. Where do I have to file for my child-related matters?
It depends on if there have been court orders involving the child in question or not. If not, you should file in the county where the child resides. If so, you are generally required, except in an emergency situation, to file anything concerning the child in the same court which issued those orders. This is called the court of continuing, exclusive jurisdiction. If the child does not live in that county any longer, you may be able to arrange to have the matter transferred to the county where the child presently resides.
3. How long do I need to be in Texas before I can file for divorce, or do something else related to my family law case?
You need to have lived within Texas for a minimum of six (6) months for Texas to gain jurisdiction. You should be able to show proof of such residency, such as a utility bill or a apartment lease with a signing date to give evidence if required to do so by the court.
4. How long does it take to get a divorce?
One of the most difficult questions to answer. There is a minimum time mandated by the Texas Family Code of 60 days from the time of filing before a divorce may be signed and entered by the court. However, that is only the bottom limit. There is no real top limit as to how long it can possibly take, except for the patience of the court. Generally speaking, uncontested divorces are usually completed within 75 days from the time they are filed. Depending on the level of contested issues in a case, they may last up to 1.5 to 2 years, which is the longest the usual cases last. We do everything we can to reduce the time, but it takes both sides coming to an agreement to move things along faster, and sometimes such agreements simply do not occur.
5. Must I get divorced in court?
Yes. However, you may not personally need to appear in court when your divorce is finalized if you were not the original Petitioner, the party who filed the first petition. In fact, most divorces are resolved with only the Petitioner being present, to put an agreement of the parties before the judge to be signed. This is in all ways the best method to have a divorce granted, if for no other reason than to save you money in attorney's fees and your own time.
6. Do I need an attorney to file for divorce?
No. However, unless your divorce is extremely simple -- there are absolutely no property issues involved, both assets and debts, as well as there being no children of the marriage, then using the services of a family law attorney is a very good idea. There are many pitfalls of which to be wary which can potentially cost you tens of thousands of dollars.
7. Can we be divorced by agreement?
Yes. However, as mentioned above, one party will have to appear in court for the very minimal final appearance before a judge. If everything is agreed to between the parties, this final hearing is usually quite informal and typically lasts about a minute and a half.
8. How is our property divided?
Marital property, which is divided into community property and separate property, is either divided by agreement of the parties or by the court. If by the parties' agreement, the court merely reviews the division to make certain that it is a "just and right" division. If by the court, the court begins with the presumption that a 50-50 division is just and right and works from there to divide the community property. Separate property, which is generally the property that a spouse enters the marriage with, or is given to a single spouse through gift, devise, or descent, is also that spouse's separate property and remains so after the divorce.
9. Who has to pay child support?
Generally speaking, the parent who has the child less of the time pays child support, though this may not always be the case. In the vast majority of the cases, the parent who determines the primary residence of the children receives child support from the other parent. Sometimes, this is handled in other ways by agreement of the parties.
10. How much in child support should I be paying/receiving?
One of the most common questions in family law. Texas has guidelines for child support which act as formulas for the calculation for the appropriate amount of child support. They are guidelines, but most practitioners and judges tend to treat them with great deference because of the presumptions that the amounts recommended are in the best interests of the child or children involved.
There is an increasing scale for the percentage of "disposable income" to be paid as child support in the guidelines, based on the number of children to be supported in one or more households -- 20% for 1 child, 25% for two children, 30% for 3, up to a max of 40%. Children in more than one household complicate matters somewhat, but there are calculations available for that, too. For example, if a father needs to pay child support for a child of a previous marriage, and has a new child from a current marriage, his proper child support percentage for the other child drops from 20% to 17.5% as soon as a new child support order goes in place after the new child is born.
As you can see, this is a technically complex question to answer unless the individual circumstances of the case are known. When they are, it is a simple matter to calculate the proper percentage and apply it to a person's earnings.
11. What income is included in the calculation?
The income is referred to as "disposable income," which is the income that the person can choose to "dispose" of how they wish. Most people would think of it as the person's "take-home" pay, but this is not always accurate, depending on retirement benefits, and other withholdings from a paycheck. Another case-by-case basis determination.
12. What about my child's health insurance; whose responsibility is it?
It is presumed that the person who is obligated to pay normal child support is the person providing the health insurance, or reimbursing the costs for that health insurance. This is part of the structure provided for in the child support guidelines discussed above.
13. What about my child's uninsured medical costs, such as co-pays or braces?
Generally, those are divided either equally between the parties, or divided on an equitable basis if one party earns substantially more than the other. The health care provisions in a typical child support order detail how this is to occur, with precise explanations for if, when, and how a uninsured health care cost is to be reimbursed by one party to the other.
14. What can I do to enforce payment of child support?
If in-state, what is done is to file a petition for enforcement of child support, possibly requesting contempt if the party who was ordered to pay is very seriously behind. The penalties are serious, including a sort of incrementally-increasing interest, seizure of assets and/or property to pay the debt, as well as potential jail time. It is getting very hard to simply avoid a child support order.
15. What if my former spouse is missing?
There are various assets the attorney can utilize to assist you in locating a missing parent, including but not limited to parent locator services or private investigative services to search target state's records in order to locate a missing parent.
16. What happens if my child is very young, say younger than 3 years old?
For newborns to children up to age three there is a growing body of law supporting graduated possession orders where the increasing age of the child leads to increasing times for possession by a father who is not the primary parent. These are generally used in the cases where there is no true issues concerning the safety and wellbeing of the child while with either parent, as such issues can render the usual unworkable. Typically, for very young children, the father would be given set times during each week during which to exercise possession and visitation with the baby or toddler, such as from 6-8 p.m. on Mondays and Wednesdays, and Noon-2 p.m. on Saturdays. These days and times are very often moved about during the week to make them convenient for each side.
17. Can my former spouse file for bankruptcy to avoid paying child support?
No. The Bankruptcy Code specifically exempts support obligations, including both child and spousal support, from bankruptcy relief; including the automatic stay provisions. However, a divorce proceeding itself may be significantly altered because of the bankruptcy debtor's involvement in the property division matter which is inherent in almost all divorces.
18. If my child's other parent isn't paying child support, do I have to still allow the visitation, or vice-versa?
Yes. The obligation to pay child support does not relate to the right to possession of the child on a "tit for tat" basis. Simply because one side does not do as they are obliged to do, whether that is allowing possession or paying child support, does not mean that the other party may withhold performance of their own obligations. This quite often leads to dueling motions for enforcement, one sides enforcement of child support, the other side's enforcement of possession or access.
19. Can I still enforce my child support even if the other parent lives in a different state?
Yes. The Uniform Reciprocal Enforcement of Support Act ("URESA") or a similar statute allows you to enforce your child support order in the other state. If you are seeking enforcement of such an order, you would file a petition for such enforcement in the one state, obtain a court order which would then be enforced in the other state. A bit tedious and time consuming, but quite effective.
20. What if my spouse and I took part in assisted reproduction methods, such as sperm/egg donation, surrogate mothers, or artificial insemination? Who are the parents?
The Uniform Parentage Act, Chapter 160 of the Texas Family Code, defines many acts used in modern medicine as acts of "assisted reproduction." Generally speaking, if a man and woman consent to the assisted reproduction, and a child is conceived and born, the consenting parties are the father and mother of the child for all purposes thereafter, including for purposes of child support as well as inheritance.
21. What happens to child support if my child has a disability?
Child support normally terminates at the latter of the child graduating from high school or turning 18 years of age. However, if the child has a disability child support may be continued indefinitely, to a point where the support is ruled as no longer necessary by a court.
22. What is a guardianship, and what is it used for?
A parent is a guardian of their minor child, but after the child reaches the age of 18 the child effectively becomes their own guardian. However, if for reasons of incapacity or disability of some nature an individual, though legally an adult, cannot make their own decisions in such a way as to adequately protect and provide for themselves, they may need another person to act as their guardian in adult life. Many persons who have suffered traumatic brain injury are in need of guardianships by a member of their family or friends, as do persons who have suffered from strokes or related medical events. The Guardian is able to step into the shoes of the effected person and render decisions and take actions on their behalf. Guardianships are very often used by the children of an elderly parent who, because of illness or injury, is no longer able to take action on matters which typically require their competency, such as the making of wills, the selling of property, payment of debts, transferring property, etc. Some of these actions may be handled also through various power of attorney documents, but the Guardian, once appointed by the court, is able to take any such actions on behalf of the person on whose behalf they are appointed with no further action necessary in court.
23. Can I adopt my step-child?
Yes. However, it requires the termination of the parental rights of the other parent. Such termination may either be voluntary, via a relinquishment of such parental rights, or involuntary because of the negative acts of such a parent. Terminations of parental rights are difficult, and are not undertaken lightly by the court and require much in the way of evidence. A relinquishment, by contrast, is simply an affidavit-style document which is signed by the other parent, to allow the step-parent to step into the role of true parent.
24. Can I terminate my child's other parent's rights?
Perhaps, if the other parent has committed certain acts of abuse or neglect towards the child, which specifically includes being incarcerated for a period of time or not supporting the child for a period of time. As stated above, it is a difficult task to force through a contested termination of parental rights. Such cases are absolutely required to meet certain standards and levels of negative conduct. Verifiable evidence of such actions, or lack of them, is also required. These cases are very individualized, and require attention and evaluation on a case-by-case basis.
25. What if I want to adopt a child which is not my own step-child?
If you are related to the child in any way, generally you move through a process similar to that of a step-parent adoption, which involves termination of at least one of the other parent's rights (usually by consenting individuals), sometimes both, if the clients are a couple wishing to adopt another couple's child on a voluntary basis.
If there is no specific child in question, your best option is to seek out a qualified and credentialed adoption agency and submit yourself, and your partner as well if you have one, to the agency's intake process.
** The above are simply answers to commonly-asked questions of family law. Every single case is unique, and deserves individualized attention to details. The above is not intended as the providing of legal advice, and does not create any sort of attorney-client relationship between the reader and the attorneys of The Powell Law Firm. It is intended merely as informational assistance