Divorce FAQ

If you have questions regarding your divorce in Texas, our lawyers at Landrith & Kulesz, L.L.P., can help. Allow our experienced team to guide you to the resolutions you seek, so you can move forward in your life.

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Answers to Your Uncontested Divorce Questions

How long does the divorce take?

If both parties have agreed on all issues involved, including property issues, debt issues, conservatorship, visitation and child support of any child(ren), an uncontested divorce can be finalized anytime after the 60th day the divorce petition was filed. If the parties are dividing a retirement account, then that may delay the process. Typically, it takes a company anywhere from 2-12 weeks to get us the information needed to divide the account(s).

What is the process for filing an uncontested divorce?

At the time of the initial office conference and after you have paid the required retainer fee, the attorney will draft the Original Petition for Divorce and file said document with the court. Then the attorney will forward a copy of the Original Petition for Divorce to you and your spouse, along with a Waiver of Citation.

Your attorney will also give you a packet with information that will be needed to draft the Final Decree of Divorce. Once that packet is returned, the attorney will prepare the Final Decree of Divorce. Typically, it is our practice to have all the documents ready and signed by both parties, so that the case may be finalized on the 61st day (unless there are retirement accounts in which case it generally takes longer).

What is a waiver of citation?

It is a document that must be signed by the party that did not file for divorce and it must be notarized. This document waives the service of process on the Original Petition for Divorce. If the waiver of citation is not signed, then the party must be served with the Original Petition for Divorce by either a sheriff or private process server. This will increase the cost of the divorce to the filing party.

What is the retainer fee required for an uncontested divorce?

A minimum retainer of $1,750 is required before a suit is filed. This is a retainer fee only and generally all divorces will cost something in excess of this amount, depending on the additional documents that may be needed to complete a divorce.

Answers To Contested Divorce Questions

What is the cost for a contested divorce?

A minimum retainer of $1,750 to $5,000 is required before a suit is filed. If there are issues concerning sexual abuse of the children, the retainer may be more.

What is the process and how soon can we get a hearing?

At the time of the initial office conference and after you have paid the requested retainer, the attorney and the client will decide exactly what to file, such as Original Petition for Divorce with a Temporary Restraining Order (TRO) or Original Petition for Divorce and Hearing for Temporary Orders. A TRO must be heard within 14 days from the day the Petition is filed. A Hearing for Temporary Orders usually can be heard anywhere from 2 to 21 days.

Your spouse will be served with the documents. The judge will make Temporary Orders on property issues, debt issues, conservatorship of the children, visitation and child support. It is possible to try to settle before the hearing, and enter the Temporary Orders at the time of the hearing.

Can I exclude my spouse from the home

No, a trial court may not issue a Temporary Restraining Order that excludes a spouse from the family home, prohibits reasonable and necessary spending of funds for living expenses, or forbids reasonable and necessary conduct of a party's usual business. At the hearing for the temporary injunction where both parties have been given notice and opportunity to be heard, the Court may enter more extensive orders, including temporary injunctions, orders for support of a spouse, and interim attorney's fees, as well as for temporary exclusive use of marital property. A spouse can be excluded from the residence if there is abuse involved.

What are the grounds for divorce?

  1. Insupportability — 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.
  2. Cruelty — The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.
  3. Adultery — The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.
  4. Conviction of Felony — The court may grant a divorce in favor of one spouse if during the marriage the other spouse:
    • Has been convicted of a felony
    • Has been imprisoned for at least one year in the state penitentiary, a federal penitentiary or the penitentiary of another state
    • Has not been pardoned
      NOTE: The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.
  5. Abandonment — The court may grant a divorce in favor of one spouse if the other spouse:
    • Left the complaining spouse with the intention of abandonment
    • Remained away for at least one year
  6. Living Apart — The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.
  7. Confinement in Mental Hospital — The court may grant a divorce in favor of one spouse if at the time the suit is filed:
    • The other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003, Health and Safety Code, in this state or another state for at least three years
    • It appears that the hospitalized spouse's mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

Defenses
The defenses to a suit for divorce of recrimination and adultery are abolished. Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.

Other Common Questions

When can I remarry?

  1. Except as otherwise provided by Subchapter H of the Texas Family Code, neither party to a divorce may marry a third party before the 31 st day after the date the divorce is decreed.
  2. The former spouses may marry each other at any time.

What are the requirements to file a divorce in the state of Texas?

A suit for divorce may be maintained in this state if at the time the suit is filed, either the petitioner or respondent has been:

  1. A domiciliary of this state for the preceding six-month period

  2. A resident of the county in which the suit is filed for the preceding 90-day period

What are the eligibility requirements for spousal maintenance?

The court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and:

  1. The spouse from whom maintenance is requested was convicted of a criminal offense that also constitutes an act of family violence within two years of date of filing dissolution or while the suit is pending
  2. The spouse seeking maintenance: (a) Is unable to earn sufficient income to provide for their minimum reasonable needs because of an incapacitating physical or mental disability; (b) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for their minimum reasonable needs; or (c) is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of physical or mental disability that prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.

How long does spousal maintenance last?

The court may not order maintenance that remains in effect for more than five to 10 years depending on the length of the marriage as well as other factors.

How much is spousal maintenance?

A court may not order maintenance that requires an obliger to pay monthly more than the lesser of: (1) $5,000; or (2) 20 percent of the spouse's average monthly gross income.

What child visitation is my spouse entitled to?

Generally, Standard Visitation. The spouse without primary possession would basically get first, third and fifth weekends, Thursday visitation during the school term, and holidays. The holidays, except for Christmas, are usually alternated every year. Christmas is usually split each year. Summer visitation is generally 30 days. There are variations the visiting party can choose from regarding Thursday visitation and weekend access.

What is the visitation for a child under 3?

There are no set guidelines. Usually, the court will do a step-ladder visitation. Example: Under six months of age: Two days a week for 2 hours; Sundays for 2 hours. Between six months and eighteen months of age: Christmas Day - 4 hours; Thanksgiving Day - 4 hours; Birthday - 2 hours; Two days a week for 4 hours; Sundays for 4 hours.

What is the amount of child support that I am entitled to?

  • 1 child would be 20 percent of your spouse's net income.
  • 2 children would be 25 percent of your spouse's net income.
  • 3 children would be 30 percent of your spouse's net income.
  • 4 children would be 35 percent of your spouse's net income.
  • 5 children would be 40 percent of your spouse's net income.

The court shall deduct the following items from resources to determine the net resources available for child support. Net income is defined as follows:

  1. Social Security and Medicare taxes
  2. Federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction
  3. Union dues
  4. Expenses for health insurance coverage for the obligor's child. If the obligor has children in more than one household, there is a formula for a percentage of the child support to be "offset" from each household. The income of a new spouse (of either party) is not considered when setting child support.

What if the person paying child support is self-employed, how is child support figured?

Income includes benefits allocated to an individual from a business or undertaking in the form of a proprietorship, partnership, joint ventures, close corporation, agency or independent contractor, less ordinary and necessary expenses required to produce that income. In its discretion, the court may exclude from self-employment income amounts allowable under federal income tax law as depreciation, tax credits or any other business expenses shown by the evidence to be inappropriate in making the determination of income available for the purpose of calculating child support.

When does child support end?

When one of the following occurs: (1) the child reaches the age of 18 years or graduates from high school, whichever occurs later, subject to the provisions for support beyond the age of 18 years set out below; (2) the child marries; (3) the child dies; (4) the parent-child relationship is terminated based on genetic testing that excludes the obligor as the child's genetic father; (5) the child enlists in the armed forces of the United States and begins active service as defined by section 101 of title 10 of the United States Code; or (6) the child's disabilities are otherwise removed for general purposes.

Does child support cover college expenses?

Unless a child is disabled and unable to live independently, the court does not have the power to order support past high school and the age of 18. However, the parties can enter into an agreement that becomes a contract to pay the expenses of college or vocational school for their children. This agreement will be drafted as a part of your divorce decree and then can be enforced by the courts as a contract. This must be an agreement, and cannot be ordered by the court after a case goes to trial.

Who pays health insurance?

The court shall consider the cost and quality of health insurance coverage available to the parties and shall give priority to health insurance coverage available through the employment of one of the parties. If health insurance is available for the child through the obligor's * employment, the court shall order the obligor to include the child in the obligor's health insurance. If health insurance is not available through obligor's employment, the court may order the obligee * to provide health insurance for the child, in such event, shall order the obligor to pay additional child support to be withheld from earnings to obligee for the actual cost of the health insurance. If health insurance is not available as stated above, the court shall order the obligor to provide health insurance for the child if the court finds that health insurance is available for the child from another source and that the obligor is financially able to provide it.

* "Obligor" means a person required to make payments under the terms of a support order for a child.

* "Obligee" means a person or entity entitled to receive payments of child support, including an agency of this state or of another jurisdiction to which a person has assigned the person's right to support.

How is our property divided?

All property must first be determined as "community property" or "separate property" prior to its division. Community property is all property that is not separate property. Separate property is any property that was owned by one of the parties before marriage, or that has been acquired by gift, devise or inheritance during the marriage.

All separate property is awarded to the person in whose name they are owned.

Community property can be divided however if the parties agree and failing agreement, then in a "just and fair" manner. A judge has the right to make an unequal division of property, by taking into account the age, education, earning capacity of the spouses or damages that may have been done to the "innocent" spouse. In addition, widely disparate divisions of property can be made based on the disability of a spouse or child, or the enhancement of one spouse's community property through use of separate property money.

When dividing the community, the "net worth" of the community is taken into account. This is found by adding the value of all community property and subtracting the community debt. Things such as cash or stocks can be divided down the middle, while other items, such as cars, houses, etc., cannot be so easily distributed. If an asset cannot be equally divided or one party would like to retain an asset intact, the other spouse can be given something of equal value or the receiving spouse may assume more community debt.

What about my retirement?

Retirement benefits earned during the marriage are community property, and are subject to division by the court. If a spouse has contributed to a retirement account both before and after marriage, only the portion earned during the marriage is community property.

If you want to keep your retirement intact, it will be necessary to offer your spouse something of equal value — a "trade-off" or "buy out." This can be the offering of another major or by making monthly payments to your ex-spouse after the divorce.

The first step in dividing or offering to buy out a retirement fund is to establish the value of the retirement benefits. This can be determined through your plan administrator.