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Frequently Asked Questions
DIVORCEUncontestedHow long does the divorce take? What is the process for filing an Uncontested Divorce? What is the retainer fee required for an uncontested divorce? ContestedWhat is the process and how soon can we get a hearing? Can I exclude my spouse from the home What are the grounds for divorce? Other Common Questions:What are the requirements to file a divorce in the State of Texas? What visitation is my spouse entitled to? What is the visitation for a child under 3? What is the amount of child support that I am entitled to? If the person paying child support is self-employed, how is child support figured? How is child support calculated? Does child support cover college expenses? What about medical expenses that are not covered by health insurance? Who claims the child(ren) on taxes? What is the cost for a contested divorce? Can a child choose which parent to live with? ANNULMENTPATERNITYWhen Can I bring a Suit to Determine Parentage? If the father is found to be the biological father, can support be retroactive? What is the cost for a paternity suit? ADOPTION AND TERMINATIONTerminationCan the Petition for Termination be filed before the child’s birth? Can an Affidavit of Relinquishment be revoked? Who can bring standing to request termination and adoption? What are the grounds for termination? AdoptionWhen can the adoption take place? How long do the biological parents have to contest the Adoption? What is the retainer fee required for a termination and adoption? ModificationWhat are the grounds for Modification of Sole Managing Conservator? What are the grounds for Modification from Sole Managing Conservator to Joint Managing Conservator? What are the grounds for Modification of Possession and Access? What are the grounds for Modification of Child Support? What if there is a change in Physical Possession? What is the retainer fee required for a modification? EnforcementWhat are the time limitations; Enforcement of Possession? What are the time limitations; Enforcement of Child Support? What is the retainer fee required for an enforcement? DivorceUncontestedHow 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. The 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 party filing same. What is the retainer fee required for an uncontested divorce? A minimum retainer of $1,500.00 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. ContestedWhat 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, and 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?
Other Common Questions:When can I remarry?
What are the requirements to file a divorce in the State of Texas? A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or respondent has been:
What visitation is my spouse entitled to? Generally, Standard Visitation. The spouse without primary possession would basically get 1st, 3rd, and 5th 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% 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:
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. How is child support calculated? The Court deducts the following from the monthly gross income: Social Security Taxes, Federal Income Tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, union dues; and expenses for health insurance coverage on the child(ren). When does child support end? When one of the following occurs: (1) the child reaches the age of eighteen years of age or until graduation from high school, which ever occurs later; (2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; (3) until the death of the child; or (4) if 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. What about medical expenses that are not covered by health insurance? Each party is ordered to pay fifty (50%) percent of all reasonable and necessary health-care expenses not paid by insurance and incurred by or on behalf of the parties' child(ren), including, without limitation, the yearly deductible, if any, and medical, surgical, prescription drug, mental health-care services, dental, eye care, ophthalmological, and orthodontic charges, for as long as child support is payable under the terms of the decree. What is the difference between Sole Managing Conservator/Possessory Conservator and Joint Managing Conservator? Sole Managing Conservator and Possessory Conservator’s rights and duties
Joint Managing Conservators
Who claims the child(ren) on taxes? The person having primary possession of the child(ren) is entitled to claim the child(ren). What is the cost for a contested divorce? A minimum retainer of $1,500.00 to $5,000.00 is required before a suit is filed. If there are issues concerning sexual abuse of the children, the retainer may be more. Can a child choose which parent to live with? A child 12 years of age or older may file with the Court in writing, the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child. The Court has the ability to determine the best interest of the child. How is our property divided? All property must first be determined as "community property" or "separate property" prior to it be divided. 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 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 disability of a spouse of child of 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 in to account. This is found by adding the value of all community property and subtracting the community debt. Things such as cash or stacks 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. ANNULMENTWhat are the grounds? The Court may grant an annulment based on one of the following grounds:
PATERNITYWhen Can I bring a Suit to Determine Parentage?
If the father is found to be the biological father, can support be retroactive? On a finding of parentage, the Court may order support retroactive to the time of the birth of the child and, on a proper showing, may order a party to pay an equitable portion of all prenatal and postnatal health care expenses of the mother and child. In making an order for retroactive child support under this section, the Court shall use the child support guidelines provided by Chapter 154 (Child Support) together with any other relevant factors. What is the cost for a paternity suit? A minimum retainer of $1,500.00 is required before a suit is filed. ADOPTION AND TERMINATIONTerminationHow soon after a child is born in an adoption matter can the biological parents' rights be terminated? An affidavit of Relinquishment of parental rights must be signed after birth of the child, but not before 48 hours after the birth of the child, by the parent, whether or not a minor, whose parental rights are to be relinquished. Can the Petition for Termination be filed before the child’s birth? Yes, a suit for termination may be filed before the birth of the child. If the petition in a suit for termination is filed before the birth of the child, the Court may not conduct a hearing in the suit nor render an order other than a temporary order until the child is at least five (5) days old. Can an Affidavit of Relinquishment be revoked? An Affidavit of Relinquishment of parental rights or affidavit of waiver of interest in a child that fails to state that the relinquishment or waiver is irrevocable for a stated time is:
At any time before an order granting the adoption of the child is rendered, a consent required by Section 162.010 may be revoked by filing a signed revocation. Who can bring standing to request termination and adoption? An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by:
What are the grounds for termination? The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: That a parent has: Voluntarily left the child(ren) alone or in the possession of another not the parent and expressed an intent not to return; Voluntarily left the child(ren) alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child(ren), and remained away for a period of at least three months; Voluntarily left the child(ren) alone or in the possession of another without providing adequate support of the child(ren) and remained away for a period of at least six months; Voluntarily left the child(ren) alone or in the possession of another without providing adequate support of the child(ren) and remained away for a period of at least six months; Knowingly placed or knowingly allowed the child(ren) to remain in conditions or surroundings that endanger the physical or emotional well-being of the child(ren); Engaged in conduct or knowingly placed the child(ren) with persons who engaged in conduct that endangers the physical or emotional well-being of the child(ren); Failed to support the child(ren) in accordance with [his/her] ability during a period of one year ending within six months of the date of the filing of this petition; Abandoned the child(ren) without identifying the child(ren) or furnishing means of identification, and the child(ren)'s identity[ies] cannot be ascertained by the exercise of reasonable diligence; Voluntarily, and with knowledge of the pregnancy, abandoned the child's mother beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth; Contumaciously refused to submit to a reasonable and lawful order of a court under subchapter D, chapter 261, of the Texas Family Code; Been the major cause of the failure of the child(ren) to be enrolled in school as required by the Texas Education Code; Been the major cause of the child(ren)'s absence from the home without the consent of the parents or guardian for a substantial length of time or without the intent to return; Executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided for by chapter 161 of the Texas Family Code (this affidavit of relinquishment is attached to this petition); Been convicted or placed on community supervision (including deferred adjudication community supervision) for being criminally responsible for the death or serious injury of a child under section [19.02/ 19.03/19.04/21.11/22.01/ 22.011/22.02/22.021/22.04/22.041/25.02/43.25/43.26] of the Texas Penal Code; Been adjudicated under title 3 of the Texas Family Code for conduct that caused the death or serious injury of a child and that would constitute a violation of section [19.02/19.03/19.04/21.11/22.01/22.011/22.02/22.021/22.04/22.041/25.02/43.25/43.26] of the Texas Penal Code; Had [his/her] parent-child relationship terminated with respect to another child based on a finding that [his/her] conduct was in violation of paragraph (D) or (E) of subdivision (1) of section 161.001 of the Texas Family Code or substantially equivalent provisions of the law of another state; Constructively abandoned the child(ren) who [has/have] been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months, and the department or agency has made reasonable efforts to return the child(ren) to [him/her], [he/she] has not regularly visited or maintained significant contact with the child(ren), and [he/she] has demonstrated an inability to provide the child(ren) with a safe environment; Failed to comply with the provisions of a court order that specifically established the actions necessary for [him/her] to obtain the return of the child(ren), who [has/have] been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child(ren)'s removal from [him/her] under chapter 262 of the Texas Family Code for abuse or neglect of the child(ren); Used a controlled substance (as defined by chapter 481 of the Texas Health and Safety Code) in a manner that endangered the health or safety of the child(ren) and failed to complete a court-ordered substance abuse treatment program; Used a controlled substance (as defined by chapter 481 of the Texas Health and Safety Code) in a manner that endangered the health and safety of the child(ren) and, after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance; Knowingly engaged in criminal conduct that has resulted in [his/her] conviction of an offense and confinement or imprisonment and inability to care for the child(ren) for not less than two years from the date this petition is filed; Been the cause of the child(ren)'s being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by section 261.001 of the Texas Family Code; Voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing an intent to return for the child; and B. That termination is in the best interest of the child. AdoptionWhen can the adoption take place?
How long do the biological parents have to contest the Adoption?
What is the retainer fee required for a termination and adoption? A minimum retainer of $2,500.00 for a step-parent family adoption is required before a suit is filed and $2,500.00 for a private adoption is required before a suit is filed. ModificationWhat can be modified? A Court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, or possession of and access to a child. What are the grounds for Modification of Sole Managing Conservator?
What are the grounds for Modification from Sole Managing Conservator to Joint Managing Conservator?
What are the grounds for Modification of Conservatorship or Possession and Access? The Court may modify an order that sets the terms and conditions for possession and access to a child or that prescribes the relative rights and duties of conservator if:
What are the grounds for Modification of Child Support?
Can my current spouse's income be affected by me paying child support for a child of a prior marriage?
What if there is a change in Physical Possession? If the sole managing conservator of a child or the joint managing conservator who designates the child's primary residence has voluntarily relinquished the actual care, control, and possession of the child for at least six months, the Court may modify an order providing for the support of the child to provide that the person having physical possession of the child shall have the right to receive and give receipt for payments of support for the child and to hold or disburse money for the benefit of the child. What is the retainer fee required for a modification? Conservatorship: A $1,000.00 minimum fee, uncontested, is required before a suit is filed. A $2,500.00 minimum fee, contested, is required before a suit is filed. Child Support: A $1,500.00 minimum fee is required before a suit is filed EnforcementWhat can be modified?
What are the time limitations; Enforcement of Possession? The Court retains jurisdiction to render a contempt order for failure to comply with the order of possession and access if the motion for Enforcement is filed not later than the sixth month after the date:
What are the time limitations; Enforcement of Child Support?
What is the retainer fee required for an enforcement? Enforcement: $1,500.00 minimum fee is required before a suit is filed Site Directory: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright © by Landrith & Kulesz, L.L.P.. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. |
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