Answers To Our Most Common Family Law Questions
1. How long does a divorce take? In Texas, there is generally a 60-day waiting period to obtain a divorce. This period might be shortened in situations involving family violence. If the parties are able to reach an agreement rapidly, the divorce could be finalized as soon after the 60th day as the court’s schedule allows. Contested cases generally take four to nine months to resolve.
2. How long does a modification proceeding take? There is no waiting period for the conclusion of modification proceedings. The time from start to conclusion of a modification proceeding depends largely on the issues involved (for example, custody, child support and visitation) and the contentiousness of the parties.
3. What is joint managing conservatorship? There is a presumption in Texas that both parents be appointed joint managing conservators. In most cases, each parent will be appointed a joint managing conservator with independent rights to make decisions for the child, such as decisions concerning medical care and education. Unless the parties agree otherwise (and the court approves the agreement), one parent will be awarded the exclusive right to decide the child’s primary residence (sometimes with a geographic restriction) and to receive child support.
Although the labels “custodial parent” or “noncustodial parent” are not found in the Texas Family Code, the parent with the exclusive right to decide the child’s residence may be regarded as the custodial parent. The other parent will have visitation – generally under the Texas standard possession order (SPO). In some cases, joint managing conservatorship may not be in the child’s best interests, and the parents are appointed either “sole managing conservator” or “possessory conservator.”
4. Do mothers automatically win custody battles? No, in Texas, the issue of custody is based on the best interest of the child, not the gender of the parent.
5. How much is child support? In Texas, child support is calculated based on a percentage of the obligor’s income and the number of children involved. The guidelines are normally followed, although a party could request a variance from the guidelines depending on the facts.
6. How is visitation determined? In Texas, a SPO sets forth specific dates and times for possession of and access to a child. The periods are different depending on whether the “noncustodial” parent lives within or beyond 100 miles from the child. The standard possession order sets forth visitation for weekends (generally, first, third and fifth weekends), a weekday during the school term, summer, spring break, Thanksgiving and Christmas holidays. In special cases, the SPO may be varied depending on the facts (such as a parent who works weekends). The first prong of standard possession is that the parties will have possession and access as the parties agree. If the parties cannot agree, then the dates and times under the SPO apply.
7. Are all assets subject to division in a divorce? Only community assets are subject to division in a divorce. In Texas, a spouse’s separate property is not subject to division. Separate property includes property owned before marriage, property acquired during marriage by gift or inheritance, or personal injury damages (other than damages for lost income). All property is presumed to be community, so if separate property is claimed, then the burden is on that party to prove that the property is separate. In situations involving separate property, there may be issues of reimbursement (for example, if community property funds are used to benefit a spouse’s separate property).
8. What are temporary orders? In most divorce cases or suits affecting the parent-child relationships (SAPCR), temporary orders are generally established soon after a case is filed. The temporary orders are regarded as the “ground rules” for how things will be set up while the divorce or SAPCR case is pending. Temporary orders generally include provisions for conservatorship of children, child support and visitation, possession of property and certain injunctions.
9. What if a previous order concerning children needs to be changed? Texas allows a party to file a modification proceeding to try to change orders concerning children – for example, orders concerning custody, child support or visitation. Generally, there must be a material and substantial change of circumstances, and the requested change must be in the child’s best interest.
10. What if the other parent is not complying with an order? In the event a parent violates a court order, the other parent may file an enforcement proceeding. Typically, this occurs when a parent does not pay child support, as ordered, or fails to allow visitation.
11. How do you charge for your work? Our fees are based on our usual hourly rate, plus expenses. We usually require a retainer, which is treated like a security deposit for fees and expenses. The retainer is deposited in a separate client trust account. We bill monthly and ask to be paid as the bills are received. The retainer is then applied to the final bill, and if the final bill is less than the retainer, the difference is refunded to the client.
12. Do you allow a military discount? Yes, we provide a 10% discount for active-duty military personnel.