Family Law FAQs

I want to divorce my spouse, but he or she isn't going to agree. I'm thinking about just leaving. Do I have any other choices?

Leaving the marital home during a divorce can potentially impact you negatively. For example, if after you file for divorce you want to move back in, this will be difficult to accomplish Furthermore, the spouse who leaves the marital home may find a smaller and less attractive option for housing, which could impact custody determinations. Also, if you leave your children in the home, a family court will want to maintain as much stability as possible and may keep the children in the home.

There is not a required time that you must stay physically separated from your spouse in Texas in order to get a divorce. You can file for divorce while still living together. You may have other choices if you do not want to live together, such as seeking a protective order if there has been domestic violence or filing for a temporary order so that the question of residence is dealt with until the divorce hearing. These orders can also address other aspects of your case, such as temporary financial support, determinations regarding property and visitation rights.

I moved to Texas for a fresh start, but my marriage just didn't get better. Do I need to go back to my old state to divorce?

Not necessarily. Before you can get a divorce in Texas, you or your spouse must have lived in Texas for at least six months and have been a resident of a Texas county for 90 days before the filing of the divorce complaint sb petition. If you have children and need a Texas court to make an initial custody or visitation order, your child must have lived in Texas for at least six months or since birth or Texas must have been the child's home state and have been gone for less than six months. Many people simply choose to wait out this waiting period rather than going back to their former state.

I want to remarry someone else. How long will this take?

For most people, after filing the divorce complaint, there is a minimum 60-day waiting period before a divorce is granted and the spouses are able to remarry someone else. However, most cases take well beyond 60 days. Cases take longer when the case is contested; the parties require additional hearings to sort out certain issues or when extensive discovery is necessary. Additionally, the couple will be affected by how many other cases the court must hear and its schedule. After the divorce is granted, there is a 30 day waiting period before you can remarry.

I don't make enough money for my children's lives to be the same. What can I do to help maintain stability during the legal proceedings?

It is not uncommon for spouses to have very different incomes from each other, especially if one spouse primarily worked outside the home during the marriage while the other spouse worked inside the home. In Texas, a spouse can be awarded temporary financial support while the divorce case is pending to help maintain financial stability. The spouses can agree to an amount of support. If they cannot agree, the spouse asking for support can petition the court for this award. The court considers many factors when making this determination, including:

  • Duration of the marriage

  • The ability of the spouse to pay for himself or herself

  • The employment status of the spouse seeking support

  • The lifestyle enjoyed during the marriage

  • The availability of funds from which temporary support can be paid after child support has been paid

  • The effort the spouse seeking support has made to seek employment

  • The financial obligations of the spouse who would pay support that directly benefit the spouse seeking support

  • Marital misconduct

  • Any history of domestic violence

  • The financial needs of the spouse requesting support

I made a lot of money in the past, but, in this economy, I can't pay in alimony anywhere near what I could have three years ago - will the court understand what happened to me?

The court considers several factors when determining whether to award spousal maintenance and in what amount. If a spouse is eligible to receive spousal support because he or she meets the limited circumstances for which spousal maintenance is provided, the court considers the current income and property of the spouses, as well as the historic earnings and the earning capacity of the parties.

I think I have a domestic violence problem. Can I still retain custody?

The court considers what is in the best interests of the child when addressing an issue concerning a minor in Texas in child custody or child support cases. Among these factors are the emotional and physical danger of the child now and in the future, the parental abilities of the parent seeking custody, and the programs available to assist the parents in promoting the best interests of the child. If you are being abused, you can seek a protective order or a temporary order for custody. If you are with a partner other than the child's parent who is abusing you or you are the abuser, this situation could adversely affect your ability to have custody, so it is wise to seek out assistance with this problem and legal help.

What is no-fault divorce?

Texas is a "no-fault divorce" state, meaning that to get divorced, you do not have to allege that the other spouse did something wrong to justify you getting a divorce. You do not have to prove these grounds. Instead, you simply file on the ground of insupportability.

What is an uncontested divorce?

An uncontested divorce means that you and your spouse agree to the material terms of your divorce, including:

  • Property division

  • Whether spousal maintenance will be paid and in what amount and for what duration

  • Child custody

  • Visitation

  • Child support

  • The allocation of debt

There are two ways to have an uncontested divorce in Texas:

  1. You and your spouse agree to the terms of your divorce and both sign the paperwork

  2. Your spouse was served with the divorce papers and your spouse does not file an answer or appear in court

Uncontested divorces tend to finish faster and cost less money.

I want to move out of Texas after my divorce. Will this affect my ability to retain custody?

A plan to move out of the state may impact a custody determination. The court considers what is in the child's best interests when determining child custody, including the child's physical and emotional needs. If a move is on the horizon, this is likely to affect the child's routine, stability and life. If a parent is awarded custody and then decides to move, the other parent can take action to prevent the child from moving. The court may order that the child not be moved if the relocation is not in the child's best interests. This may happen if the visitation and communication with the parent who is not moving would significantly affect the child's relationship with him or her, affected extended family relationships, remove the child from a stable, home or community or from having access to other resources available in the home state or if the child's economic, emotional or education environment would be negatively impacted by the move.

What if I Can't Locate My Spouse?

If you do not have children, you might be able to complete effective legal service on your spouse by posting a notice at the courthouse after you have made diligent inquiry into his or her whereabouts. This process requires some extra time and steps. If you are having trouble locating your spouse, speak with your lawyer about effective ways to find him or her and the possibility of posting service.

Is Mediation Cheaper Than Using Lawyers to Handle a Divorce?

Mediating divorce issues is often less expensive than litigating those issues. You will have to pay your lawyer based on the retainer agreement that you entered into. For mediation, you usually split the costs between you and your spouse. In mediation, the parties are often able to reach an agreement and resolve their legal issues so that their divorce can proceed as an uncontested case. However, the decisions that the spouses enter into can have a long-lasting impact on their life, such as child custody, child support or spousal maintenance, so many spouses choose to bring their lawyers to mediation so that they can be aware of their legal rights and the risks of reaching any particular agreement. Additionally, the mediated agreement must be properly drafted if the court is to incorporate the agreement into the divorce decree.

Will Our Agreement be Enforceable?

To make a properly drafted mediated agreement enforceable as a court order, the parties must ask the court to incorporate the agreement into their divorce decree, temporary order, child custody order or other court order that references this agreement. Then, the agreement will become enforceable and have the same effect as if the court reached the decision on its own. Both parties are bound by its terms.

We Don't Get Along Well -- How Can We Possibly Mediate?

Mediation is an effective strategy to resolve disputes. The mediator discusses the rules for the process at the beginning of the mediation and often serves as a buffer between the parties. Sometimes, the parties do not even appear in the same room together as the mediator shuttles information and offers back and forth between the parties. Additionally, the mediator uses conflict resolution techniques to help the parties communicate more effectively and respectfully. Many spouses are surprised at the usefulness of the mediation process, including couples who have experienced a high degree of conflict in their marriage.