Family Law FAQ’s
Q: What is collaborative law?
A: Collaborative law is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their marriage on an agreed basis without resorting to judicial intervention except to have the family court approve the settlement agreement. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement. Collaborative law is a rabidly growing alternative to traditional divorce litigation, as it seeks to create an environment where the parties’ dispute is presented as a problem to be solved, rather than a contest to be won.
Q: What are the residency requirements in Texas for filing a suit for divorce?
A: The party filing for divorce must have been a domiciliary of the State of Texas for six-months and a resident of the county in which the suit is filed for 90 days.
Q: Is there a waiting period after the divorce suit is filed?
A: Yes. Texas courts may not grant a divorce before the 60th day after the date the suit was filed.
Q: Do Texas courts recognize same-sex marriage or civil unions?
A: No. According to the Texas Family Code, a marriage between persons of the same sex or a civil union is contrary to the public policy of Texas and is void.
Q: Does Texas law recognize alimony?
A: Yes, in certain limited circumstances. The Texas Family Code defines “maintenance” as an award in a suit for dissolution of a marriage off periodic payments from the future income of one spouse for the support of the the other spouse.
Q: What are the eligibility requirements of maintenance in Texas?
A: Texas courts may order one spouse to pay maintenance to the other if the spouse was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence within the last two years or while the suit is pending. Additionally, Texas Courts may award spousal maintenance if the duration of the marriage was 10 years of longer, and the spouse seeking maintenance lacks sufficient property to provide for the spouse’s minimum reasonable needs, and that spouse is unable to support herself or himself because of an incapacitating physical or mental disability, or is the custodian of a physically or mentally disabled child requiring substantial care such that the spouse cannot work outside the home; or the spouse clearly lacks earning ability in the labor market to provide for the spouse’s minimum needs.
Q: Once a court determines a spouse is eligible for spousal maintenance, what factors is the court required to consider in determining the amount and frequency of maintenance payments?
A: Courts must consider the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the divorce proceeding; the education and employment skills of the parties, and the time necessary for the spouse seeking maintenance to acquire new education and training; the duration of the marriage; the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; the financial resources of the spouse from whom support is sought; acts by either spouse to destroy or conceal community property; the comparative financial resources of the parties, including medical or retirement insurance; the contribution by one spouse to the education, training, or increased earning power of the other spouse; property brought to the marriage by either spouse; the contribution of a spouse as a homemaker; and any material misconduct by the spouse seeking maintenance.
Q: Are there any additional requirements on the spouse seeking maintenance?
A: Yes. Courts presume that a spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developed the necessary skills to become self supportive during the period of separation after the divorce was filed.
Q: Are there any limits on the length of time a spouse may be required to pay spousal maintenance?
A: Yes. Unless the spouse receiving maintenance is unable to support himself or herself due to an incapacitating mental or physical disability, a court may not order maintenance payments for more than three years. And within that three year period, Texas courts must limit the duration of maintenance payments to the shortest reasonable period that allows the spouse receiving maintenance to obtain the appropriate skills and employment to self support.
Q: Does Texas law recognize common law marriages?
A: Yes. The Texas Family Code recognizes “informal marriage” as existing when a man and woman agreed to be married and after the agreement they lived together in Texas as husband and wife and represented to others that they were married. A person under 18 years of age may not be a party to an informal marriage or execute a “declaration of informal marriage”.
Q: What i a declaration of informal marriage?”
A: It is a form provided by the court clerk’s office in which a man and woman may provide the necessary background information and take and oath to the information’s veracity. This form is then filed by the county clerk and a copy sent to the bureau of vital statistics. A properly recorded declaration is prima facie evidence of the marriage of the parties.
Q: What is separate property?
A: A spouse’s separate property consists of the spouse’s property owned or claimed before marriage; property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained bu the spouse during marriage, except for any recovery for loss of earning capacity during marriage.
Q: What is community property?
A: Community property is the property, other than separate property, acquired by either spouse during marriage.
Q: Does Texas law recognize prenuptial agreements?
A: Yes. According to the Texas Family Code, a “premarital agreement” is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
Q: What is the scope of a premarital agreement in Texas?
A: The parties to a premarital agreement may contract with respect to the rights and obligations of each party regarding the ownership of property acquired before or after marriage; the right to buy, sell or transfer property; the disposition of property on separation, divorce, or death; the modification or elimination of spousal support; and any other matter not violating public policy of the criminal laws. However, the right of a child to receive child support may not be adversely affected by a premarital agreement.
Q: Does Texas have “no fault” divorce?
A: Yes. Upon the filing of a petition for divorce, the court may grant a divorce without regard to fault if the marriage has become “insupportable” due to discord or conflict that destroys the legitimate ends of the marital relationship and destroys any reasonable expectation of reconciliation.
Q: Does Texas still recognize fault based grounds for divorce?
A: Yes. A court may grant a divorce for cruelty, adultery, conviction of a felony offense during marriage, and abandonment for more than one year, and living apart without cohabitation for at least three years, if the other spouse is confined in state mental hospital for at least three years.
Q: Why might one party plead cruelty or adultery as a ground for divorce?
A: One party might plead cruelty or adultery as a basis to justify an unequal division of the property in favor of the other spouse or to use against the other spouse in a child custody case.
Q: How long does a divorce take?
A: By statute, a divorce cannot be finalized until after at least 60 days have elapsed from the date the original petition is filed. If the case is uncontested it is entirely possible to finalize the case on the 61st day after filing. If the parties cannot reach agreement on all issues, however, finalizing the divorce will take longer.
Q: Where will the case be filed and heard?
A: In divorce cases, the action should be filed in the county in which one or both of the parties resided for the immediately preceding 90-day period. In addition, at least one of the parties must have lived in Texas for the preceding six months. In a modification of a prior final order involving children, the case can be transferred to and heard in the county of current residence of the child.
Q: How difficult is it to obtain custody of my child?
A: Texas law presumes that both parents should be named as “Joint Managing Conservators” of their children. Although this does not necessarily mean that both parties will split parental rights and possession times equally, the presumption that the children will benefit by the active and regular participation of both parents in raising the child is strong. Nevertheless, in certain cases evidence exists or develops that may override the statutory presumption. In such cases, where primary custody is disputed, we will aggressively pursue the best interests of the children by empowering the judge or jury to render a decision based upon what the facts reveal rather than what facts are concealed or unknown.
Q: How much will it cost?
A: While the projected costs of a contested family law case are typically discussed with the client during the initial consultation, an uncontested divorce, child support modification, or child support enforcement action can usually be handled for approximately $1,500.00, including filing and citation fees. In addition, our fee retainers for contested matters remain among the most competitive in the Metroplex, and our firm bills in six-minute increments as opposed to the industry standard quarter-hour intervals. This means that our clients do not pay for a fifteen-minute phone call that only required five minutes of the attorney’s time. Over the course of representation our method of billing results in substantial savings to our clients.
Q: Do I need a “Protective Order” or a “Temporary Restraining Order”?
A: Each case is fact specific and the attorney will discuss the benefits and costs of all pertinent options with the client during the initial interview. In general, however, if there has been family violence or threatened family violence in the recent past and there is a continuing threat of future violence, then you should consider contacting either your local police department of a family law attorney immediately to obtain a Protective Order. A Protective Order will temporarily grant you and the children legal protection from the offending family member. The penalties for violating a Protective Order are criminal in nature, subjecting the violator to immediate arrest and possible prosecution.
A Temporary Restraining Order may be appropriate if you have concerns about the other family member’s spending habits, use of material property, or if the other spouse presents a disruptive or negative influence on the children’s daily routine. The penalties for violating a Temporary Restraining Order include invoking the contempt powers of the court, which can result in monetary fines and jail confinement.
Q: Since Texas is a “Community Property” state, does that mean that upon divorce everything is divided equally?
A: No. If the parties cannot negotiate a fair division with the help of their respective attorneys the judge or jury will divide the material assets and liabilities in a manner that is “just, right fair and equitable.” That may result in a 50/50 division, it may result in a 60/40 division, or some other division. There are many factors that the fact finder may consider, including disparity in earning capacities between the spouses and evidence of fault in the breakup of the marriage.
In addition, not all property is subject to division by the court. As a general rule, property that a spouse owned before marriage, or obtained by gift or inheritance during the marriage, belongs to that spouse as his or her separate property. This kind of property is generally not included in the division of the material estate.
Q: Do I need separate tax advice?
A: Lester W. Vance LLC always recommends that a client obtain competent tax advice before making any significant financial decisions. Our firm works closely with our clients’ tax consultants to ensure that the legal advice our firm provides harmonizes with the tax advice received from our clients’ tax specialists.
Q: Do I need a testamentary plan?
A: Unless you are content with allowing state law to determine who among your relatives will inherit your estate, you need a testamentary plan.
Q: Why can’t I just buy a computer program to make my will documents?
A: You can. But aside from the axiom, “You get what you pay for,” the simple truth is that most computer software programs are not Texas specific. Texas is one of only nine “Community Property” states and, even among those, Texas is unique in the development of its laws regarding marital property and probate matters. In other words, Texas law has many unique aspects that are not adequately addressed by generic products intended for use in multiple states.
Q: What is the difference between a Will and a Trust and which one should I have?
A: A Will is a written declaration of a person’s intended disposition of property after death. A Trust is a fiduciary relationship with respect to property in which one person (the trustee) holds and manages property for the benefit of another person (the beneficiary). Each method has advantages and disadvantages, and can be used as a stand-alone tool or as part of an integrated testamentary plan. Whether you choose one or the other, or utilize both is a fact-specific matter that is best addressed during the course of a personal conference with one of our attorneys.
Q: Do I need a Power of Attorney or “Living Will”?
A: We generally recommend that our clients consider signing both types of documents. More specifically, during our initial consultation we discuss with the client advantages of having a Statutory Durable Power of Attorney, a Medical Power of Attorney, and a Directive to Physician (Living Will).
The Statutory Durable Power of Attorney grants the client’s named agent (usually a spouse or close relative) with broad authority to make decisions on behalf of the client during a period of incapacitation.
The Medical Power of Attorney serves a similar function but is limited to making only medical decisions on behalf of the incapacitated person.
A Directive to Physician, or “Living Will,” is a written statement made in advance by the client that instructs treating physicians and health care workers to refrain from keeping the client/patient on life support under certain specified circumstances.
These are all documents that can be specifically tailored to the needs of the individual and our attorneys work closely with our clients to ensure that the documents address all of their client’s concerns and questions.
