Q: I do not really want to file for divorce. Can my spouse and I just be legally separated?
A: The Texas Family Code does not recognize a "legal separation" status. However, either party to a divorce action may request that the Court impose temporary orders upon filing for divorce. The hearing for temporary orders is held shortly after the written request is made, contained in the documents filed by the parties, and addresses those issues which require the Court's immediate attention. The intent of these temporary orders is to establish rights, duties and obligations upon which the parties can rely while the lawsuit is pending. These orders may include the award of the exclusive use of certain assets, such as the residence and motor vehicles, payment of monthly expenses, temporary spousal support, temporary custody of children, temporary child support, temporary possession of and access to the children, and other similar issues as well as a temporary injunction to prevent family violence and protect the status quo of property, insurance and legal relationships. The structure provided by the temporary orders is similar to what one might anticipate in a "legal separation" in that it provides for the needs of the parties and of the children on a temporary basis until a final determination is made with respect to the divorce proceeding itself.
Q: What is divorce?
A: Divorce is the means by which a marriage is dissolved. A divorce may include the division of community property and debts, as well as specific arrangements for child custody and support.
In Texas, both parties are free to marry again after the 30th day from the date the divorce is granted and rendered. Although a divorce occurs between husband and wife, when there is a family present, we are aware that there are ramifications for the children now and in the future. We encourage you to be supportive of your children during this awkward time, no matter their age. We maintain a list of resources including books, articles, websites, and counselors, for our clients who need assistance in talking with their children or in dealing with their own personal issues.
Q: Where will my divorce suit be filed?
A: The residency provisions set forth in the Texas Family Code require that either the husband or wife must have resided in the State of Texas for a period of six (6) months immediately preceding the filing of a divorce action in the Texas Courts. Further, either the husband or the wife must have resided in the county in which the suit is filed for a period of at least ninety (90) days prior to filing. Logically then, the county in which the suit will be filed will be the county in which the husband or wife has resided during those time periods.
There are six District Courts in Denton County, Texas. They are identified by their District numbers: 16th, 158th, 211th, 362nd, 367th, and 393rd. These courts, by statute, have jurisdiction over family law matters in Denton County. At the time of the filing of your petition for divorce, your case will be randomly assigned to one of these District Courts. That Court then becomes the only Court having jurisdiction of the pending litigation.
All of the District Courts are situated in the Denton County Courts Building located at 1450 E. McKinney, Denton, Texas 76202.
Q: How long will my divorce take?
A: A divorce in Texas may not be granted by a court before the 60th day after the date the suit for divorce was filed. However, the divorce cases that actually reach resolution on the 61st day are rare. Each case contains unique circumstances and as such, no one can predict the exact amount of time a divorce will take. Circumstances to consider which may affect your case can vary between property issues and children issues; alimony; details involving joint managing conservatorship or sole custody or joint custody; geographic restrictions; visitation issues (now referred to as possession and access or parenting time); and often reflect the emotional fortitude or instability of one or both parties during the time the divorce is proceeding. We will advise you on the distinguishing factors of community property versus separate property and how to prepare a comprehensive Inventory and Appraisement, as well as help you consider the options available to you when making decisions concerning your children and your property. It may also be necessary to hire other professionals (e.g. a CPA, business valuator, or mental health professional).
Q: I want a divorce, but can I afford it?
A: Divorce proceedings can be expensive, whether you are the requesting spouse or are the party confronted by the spouse seeking the divorce. In our offices, the family lawyers charge by the amount of time spent on a case as well as flat fees for certain document preparation. We forward regular monthly statements to you so that you may remain aware of activities on your file and be apprised of services that have been rendered. Though your case may seem "simple" to you, children issues or detailed property characterization matters can quickly become time consuming challenges that may slow down progress and increase the amount of time expended in certain areas. If one or both of the parties has a difficult time making decisions or refuses to budge on the issues they perceive to be of great importance, cases may take a longer amount of time than either party or their counsel may have been able to estimate at the beginning of a case. No one can predict the length or the exact cost of your case, and you are certainly the only person that can determine the worth of the quality of your life.
We encourage individuals to find a lawyer to represent them who can not only meet their legal needs but is also a person with whom they can relate. The question of the affordability of a divorce lacks a specific answer. Determining whether or not you can afford a divorce is more than just a question of finances. It ultimately encompasses your personal sense of well-being and self-worth, which can be greatly enhanced by personal counseling, before, during, and after divorce proceedings. Your lawyer will explore with you the various methods you can choose to obtain your divorce. You may elect to mediate certain issues or use the Collaborative Law approach, both of which are alternative methods of resolution that may appeal to you.
Q: Who gets to stay in the house? Do I have to move out?
A: Until a hearing for temporary orders can be held, and absent particular circumstances which may give rise to an exception, each spouse has an equal right to remain in the marital residence. The Court may, at the temporary hearing, award the "exclusive use" of the residence to one of the parties. At that time, the other spouse will be ordered to move out. If the exclusive use of the residence is in dispute, testimony will be presented by each spouse as to why that party should be allowed to remain in the residence, and the Court will decide based upon the information provided. There are many factors which the Court will consider in making this determination, and you will have an opportunity to discuss these factors with your lawyer prior to the hearing.
Q: What does child custody mean?
A: Custody refers to issues of conservatorship (certain parental rights) and possession of and access to a child. The primary custodial parent is the parent with the right to designate the primary residence of a child either with or without regard to geographic restriction. Courts are required by law to keep in mind the best interest of the child in determining issues of conservatorship and parenting plans. The overriding factor in deciding contested issues involving a child is the best interest of the child.
Q: What is a Parenting Plan?
A: A parenting plan is a comprehensive order concerning children's issues, including allocation of rights and duties between parents; granting periods of access and possession of children; ordering the payment of child support; requiring health insurance coverage for children; providing for the payment of health care expenses incurred by a child not paid by insurance; providing for the child's changing needs as the child grows and matures, in a way that minimizes the need for future modifications of the parenting plan; providing provisions to minimize the child's future exposure to harmful parental conflict; and providing for use of a designated dispute resolution process before action, unless precluded or limited by the Texas Family Code.
Q: What is a Parenting Coordinator?
A: A Parenting Coordinator is a person meeting the qualifications set forth in Texas Family Code Section 153.610 and is appointed by the court for the purpose of working with a family to minimize conflict before, during and after a family law court proceeding. The authority of a Parenting Coordinator must be specified in the Order Appointing the Parenting Coordinator and limited to matters that will aid the parties in:
(1) identifying disputed issues;
(2) reducing misunderstandings;
(3) clarifying priorities;
(4) exploring possibilities for problem solving;
(5) developing methods of collaboration in parenting;
(6) developing a parenting plan; and
(7) complying with the court's order regarding conservatorship or possession of and access to the child.
The appointment of a Parenting Coordinator does not divest the court of its exclusive jurisdiction and power to determine issues of conservatorship, support, and possession of and access to a child. The Court retains the authority to exercise management and control of the family law case.
A Parenting Coordinator shall submit a written report to the court and to the parties as often as ordered by the Court. In the report, the Parenting Coordinator may give only an opinion regarding whether the parenting coordination is succeeding and should continue. The Court has the power to remove a Parenting Coordinator at the Court's discretion. The Court may remove the Parenting Coordinator at the request and agreement of both parties or on the motion of a party, if good cause is shown.
Q: What is spousal maintenance?
A: In Family Law, "spousal maintenance" is an award in a divorce case that gives periodic payments from the future income of one spouse to the other spouse, for their support. There are several factors that assist the attorneys in determining if you are eligible to receive spousal maintenance. Temporary spousal maintenance is fairly common, whereas post-divorce spousal maintenance is fairly rare.
Q: May I make changes to my decree of divorce?
A: If you are seeking to modify the parenting plan, increase or decrease child support or change possession and access, yes, you may return to the court with jurisdiction of your case to modify such matters. The attorney can discuss your options with you. You may not make modifications to the property division in your divorce.
Q: What is discovery?
A: Discovery is the phase of a case in which the parties seek relevant information from each other. This can be accomplished by a variety of methods, including a Rule 194 Request for Disclosure, a Request for Production of Documents, subpoenas, depositions, interrogatories or requests for admissions. Each case is governed by a discovery control plan, and your lawyer will designate the control plan of your case in the first document filed on your behalf, in order to ascertain the appropriate discovery needs that may be pertinent to your case.
Q: Can I obtain a "no-fault" divorce?
A: Yes. It is not necessary to allege specific misconduct on the part of your spouse in order to obtain a divorce. In fact, the most commonly used ground for divorce is known as the ground of "insupportability" and states as follows:
On the petition of either party to a marriage, the Court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. (Texas Family Code § 6.001)
There are certain situations in which the use of "fault grounds" (i.e., cruel treatment, adultery, etc.) may be advantageous. However, for the most part, these fault grounds are used for specific purposes, and the decision to use these grounds should be fully discussed with your attorney before the petition is filed.
Q. Why did my spouse ask for so much in the Petition? I thought we agreed on some of those things.
A: Before knowing what the issues will be and what might happen under the law and the facts of the case, no one wants to take the chance of asking for too little. People tend to ask for more than they really expect.
Q: What are the chances my case can be settled?
A: Most divorce cases are settled.
Q: What happens if one does not do what a Court order says?
A: The Court has the power to enforce its orders in many different ways depending on the nature of the order and the nature of the violation. Generally speaking, the Court does not monitor compliance with an order, but instead will respond to allegations brought by a party that a violation has occurred. Upon a finding that an order has been violated, the Court may assess monetary fines, make further orders designed to force compliance with the original order, and/or, in some instances, even order that the violating party be incarcerated in jail for a specific period of time or until compliance has been achieved.
Q: Will I have to testify?
A: In all probability, yes. The amount and character of the testimony which you will be required to give depends upon the nature of the case to be presented to the Court. For example, should you and your spouse be able to reach an agreed settlement, the testimony which will be required is limited to only that which is necessary to establish the basic facts of the case and of the settlement. However, each side of the lawsuit is entitled to present relevant evidence through testimony and should there be issues in the case which are highly contested, the testimony would be much more extensive.
Q: What if my spouse and I agree on everything? Do we still have to go to court?
A: If the parties to a divorce are able to agree on all issues of the case, whether their case has been settled through litigious methods, using mediation, or through the Collaborative Law approach, their agreements are reduced to written form (i.e. a Decree of Divorce or a Final Order) which is then circulated for approval by the parties and their respective counsel. Once the written document is approved by all concerned, a short hearing is conducted before the Court, commonly known as a "prove-up". At least one of the parties must be present at this hearing with their legal counsel. At the prove-up, the agreement of the parties is presented to the Court through brief testimony given by the party or parties appearing. Generally, the Court will approve and adopt the agreement as the judgment of the Court.
Q: What if my spouse and I change our minds about getting a divorce? Can we stop the proceedings?
A: Until a decree of divorce is granted and rendered by the Court, you and your spouse remain married to each other. Occasionally during the course of divorce proceedings, the parties reconsider their situation and decide that they want to try to reconcile their differences. This is one of the reasons that there is a minimum time period of 60 days between the filing of a divorce action and the finalization of the suit. Your proceedings can easily be placed "on hold" to allow you and your spouse an opportunity to resolve the differences that led to the filing of the lawsuit. You should immediately notify your lawyer that you wish to place your file on hold, and your desires shall be respected. No further action would be taken on your case unless directed by you to proceed or unless we were to receive notice from the Court of any settings. Presumably, your spouse will likewise notify his or her attorney of the attempted reconciliation so that no further action will be taken by the other side as well. If reconciliation is successful, the divorce suit can be dismissed by the parties.
It is not necessary for the lawsuit to be dismissed in order for the parties to seek reconciliation. The lawsuit may be left pending, but dormant, while reconciliation is being pursued. However, please note that the suit may not be left pending indefinitely. After a lengthy period of inactivity in a case, the Court will notify the parties that there has been no action in the suit and that the Court intends to dismiss the matter for want of prosecution within approximately 30 days from the date of the notice. You will be notified immediately upon receipt of the Court's notice so that you may then re‑examine your marital situation and decide whether to proceed with the divorce suit as filed or, if your reconciliation has been successful, whether to allow the Court to dismiss the case. Once the case has been dismissed, should the marital relationship again fail, it would be necessary for you to re-file a new divorce proceeding as if the proceeding had never been filed.
Q: When can I begin to date?
A: Not until the divorce is final. Adultery is a ground for the granting of a divorce based upon fault. Your legal status as a married person does not change until a divorce is granted. Although some judges are lenient regarding dating while a divorce is pending, you should be cautious about taking this risk. The fact that your spouse may be dating should not be an excuse or justification for your conduct. If you do decide to date, you should know that it may adversely impact a child custody dispute. In no event should you introduce the children to your dates. Neither should any community funds be spent for the entertainment of or gifts to third parties.
Q: Can I open my spouse's mail?
A: No. If you receive any mail addressed solely to your spouse, it should be forwarded to him or her by you or through your attorney.
Q: May I record telephone conversations?
A: Wiretapping is a felony and can subject you to criminal prosecution. However, it is lawful to tape record a conversation if you are a party to the conversation. Therefore, you may record a conversation between yourself and another person. You may NOT secretly install a recording device so as to intercept conversations between others. You cannot legally record a conversation to which you are not a party: to do so is a felony. The whole issue of recording telephone conversations is very sensitive. You should carefully discuss this issue with your lawyer before attempting any recording.
Q: What is separate property and community property?
A: Separate property includes property which a person owned prior to marriage, property received by a person during the marriage as a gift, proceeds from personal injury lawsuits, and property inherited before or after the marriage. Texas is a community property state. Community property includes all property acquired during marriage, except property acquired by gift or inheritance. The courts in Texas presume that all property owned at the time of the dissolution of the marriage is community property. A person claiming that any asset is separate property has the burden of proof to rebut the presumption of community property. Because the court is prohibited from awarding the separate property of one spouse to the other spouse, it is important to determine and properly designate which property is separate and which is community.
