General Divorce Questions & The Divorce Process
1. How do I know when it’s time to get a divorce?
At the outset, you should be absolutely sure that your marriage is beyond saving. If you are uncertain or if there is any chance you and your spouse may get back together, go see a marriage counselor – not a lawyer.
A counselor can actually help you and your spouse work through your emotional and relationship problems. That is not the job of your divorce lawyer. I have heard it said that when your marriage is truly over, you’ll know. Then and only then, call a divorce lawyer.
2. What if my spouse wants a divorce even though I don’t?
Many divorcees often feel trapped by their spouses who want to remain in marriage. Decades ago, the State of Texas only granted divorces when “grounds” for divorce could be proven (adultery, cruelty, a felony charge, abandonment, living apart, mental instability, etc.) This approach to divorce still exists as a “fault” divorce.
However, fault is no longer needed for a divorce. All your spouse needs to prove is that they no longer love you or can’t live with you. The courts do not want to force someone to be in a marriage they no longer want to be in. If your spouse files for a divorce based on fault, you can dispute the reasons you are at fault. Still, this will not stop the divorce. Instead, it will convert the divorce to a “no fault” divorce.
3. How long will it take to get a divorce in Texas?
Texas requires a 60-day “cooling off” period after filing a petition for divorce. No final order for divorce may be entered into the court record before this 60-day period has expired. Some divorces may be granted as soon as the 60-day period passes; however, other divorces may take much longer.
Contested divorces, in which the parties do not agree as to how the issues in their case should be handled, take much longer than uncontested divorces. The parties must think about how they will divide their property, as well as time with their children. Certain types of evidence must be obtained, which may take several months or longer.
Settlement negotiations on the issues in a divorce may take many months, and in some cases, the parties simply cannot agree on a settlement and must go to trial. Therefore, as with many legal questions, the answer is, “It depends.”
4. How long does an uncontested divorce take in Texas?
If the parties have reached a full agreement on the matters that need to be resolved in their divorce, a divorce could be granted in as little as 60 days. Texas requires a 60-day “cooling off” period once a petition for divorce has been filed. Once the 60-day period has passed, a divorce order may be entered. Therefore, if the parties have come to a full agreement, they could be divorced in as little as two months. Typically, even uncontested cases take 90 to 120 days.
5. What are the steps in the process of a divorce?
While these proceedings may be confusing and strange to you, there are six typical phases which average divorce cases may go through:
- Initiating the divorce (filing the Petition of Divorce)
- Temporary orders (if necessary)
- Discovery of evidence
- Settlement negotiations
- Trial (if no settlement)
- After trial / settlement
Although each divorce case takes on its own unique personality, these basic steps occur in one form or another in most divorce cases. You should discuss each step with your attorney. He or she can give you more personalized feedback on how your particular case is likely to progress.
Note: The law prohibits a divorce decree from being entered until at least 60 days have elapsed from the date the divorce petition was filed. This “cooling off” period is, of course, just a minimum period of time. Most cases take much longer to complete.
6. What are the roles of my attorney and the legal staff?
The attorney and staff work as a team, each doing the tasks which they can do most efficiently. You are charged less per hour for the legal assistant’s work than for the attorney’s; therefore, the legal assistant handles many of the more time consuming tasks, like gathering information and day-to-day contact with the client. You will be dealing with both the attorney and the legal assistant throughout your case.
As a side note, always be courteous to your attorney’s assistants and staff. These people do more to put your case together than you can imagine. The “behind the scenes” work is just as important as the work that goes into arguing at a hearing or trial.
7. What is my role as the client?
You should be as informed and as involved in your case as possible. Educate yourself about the process of divorce. Read any and all emails, texts, letters or paperwork your attorney sends you. If you don’t understand something, ask a question. Better yet, make a list of questions for your attorney, and ask them all in one phone call or email to save time, as most lawyers charge by the hour.
Your attorney should send you a copy of all the documents that are either sent between your lawyer and the opposing lawyer or filed with the court. Save these documents! Make a file in which to keep them, and bring the file with you each time that you visit your attorney’s office, or at least the parts of your file the attorney asks you to bring or you want to talk to him/her about. Typically, a lawyer now will email you your documents so make an electronic file. Pay close attention to all court orders that are signed by a judge.
You should be totally honest with your attorney. Give all information about anything that even MAY be important in your case. This includes not only information that helps you but also all facts which might hurt your case. Chances are, your spouse or his/her attorney is going to find out about them anyway, so don’t let your attorney be the last to know. The “bad stuff” is usually not as harmful as you think.
Just as there is a division of labor between your lawyer and his/her staff, there should also be a division of labor between you and your lawyer in making decisions about your case. Your lawyer cannot settle your case without your approval and consent. You also must give your approval for other major decisions such as whether to demand a jury trial or what kind of child custody to seek. Yes, you have the right in Texas to have a jury decide where your child lives.
On the other hand, you need to allow your attorney the authority to make other decisions which involve professional judgment or courtesy. For example, your attorney should decide how to phrase your pleadings and when to file the pleading.
Also, on occasion, your spouse’s attorney may ask for your attorney to reschedule a hearing, deposition, etc. If the request is legitimate (i.e. the witness was in a car wreck the day before), allow your attorney the leeway to extend professional courtesy to the other attorney.
8. Can my attorney represent both me and my spouse?
You and your attorney and his/her staff are in an attorney-client relationship. This relationship is recognized by the law, and is very special. Your attorney CANNOT have this relationship with both you AND your spouse. This would be a major conflict of interest. Your attorney and staff owe one hundred percent of their loyalty to you and your case and owe none whatsoever to your spouse (let ’em get their own lawyer). We call this “zealous advocacy” of our client.
9. What is “confidentiality”?
The privilege of confidentiality (also called “attorney-client privilege”) prohibits disclosure of any information, whether spoken or written, between the attorney and the client, so long as the information was meant to be confidential.
For example, if you tell your divorce lawyer that you are having an affair with an intern, your lawyer cannot tell your spouse or spouse’s lawyer. Just don’t tell your lawyer one thing then testify to something completely different in court.
Privileged communications also include all correspondence or documents from your attorney/staff to you, and vice versa (e.g., information sheets you prepare for us), as well as all telephone conversations and in-person conferences between you and your attorney and staff. You should feel comfortable being open with your attorney, as your communications remain confidential.
10. What is a “no fault” divorce? What are the grounds for divorce in texas?
A divorce may be granted on one or more “fault” grounds or the “no fault” ground expressly set out in the Texas Family Code. Most divorces are granted on the no-fault ground of “insupportability.”
This is the ground to use if either spouse feels that the marriage has become insupportable because of a conflict in personalities which makes any reasonable expectation of reconciliation impossible. In English, that essentially means you just don’t like each other anymore, and cannot stand to live together as husband and wife.
“Fault” grounds for divorce include:
- cruel treatment
- conviction of a felony
- living separate and apart for three years
- confinement in a mental hospital
A court may (but does not have to) consider “fault” in the breakup of a marriage as a factor in deciding how to divide the property and debts. For this reason, a spouse may choose to plead a “fault” ground for divorce.
11. Are there separation requirements in Texas?
Texas does not recognize legal separation. However, separation for a period of at least three years is one of the grounds for divorce in Texas. Living separately and apart means living in different residences. For example, if one spouse moves into a guest room in the marital residence, this likely would not meet the requirements for a divorce based on separation.
12. What is the waiting period for divorce in Texas?
Texas law requires all divorcing couples to wait at least 60 days before a divorce may be granted. The 60-day period starts on the date the petition for divorce is filed.
13. Is there a way to divorce without going to court?
If you and your spouse are able to work out many of the issues in your case, you will significantly reduce the amount of time you must spend in court. Even if you have an uncontested divorce, in which you and your spouse agree on all issues, at least one of you must go to court during the final hearing. However, there are a few courts that if everyone has signed the divorce decree the judges will not require a final hearing.
During the final hearing, the judge asks either one or both parties some questions about the agreement under oath. However, a final hearing is not an all-day event–it may only take a few minutes to answer the judge’s questions. Your attorney will make sure you are thoroughly prepared.
14. Can you dismiss a divorce if you’ve changed your mind after filing for one?
Absolutely! Many couples reconcile after they initiate divorce proceedings. If only one party has filed a petition for divorce, then only that party has to consent to dismiss the case. If both parties filed divorce paperwork, then both parties must consent to a dismissal. If one party wants to dismiss the case and the other does not, however, the case will not be dismissed.
15. Does adultery affect divorce proceedings?
Adultery may have an impact on both no-fault and fault-based divorces. If one party is seeking a divorce because the other party committed adultery, the accusing party must present evidence of the other party’s adultery. Circumstantial evidence, such as text messages and phone records, may be enough to support a divorce for adultery.
Adultery may be considered in a court’s decision on awarding spousal support. In some cases, a court may outright deny a spousal support award to a spouse if that spouse has committed adultery. On the other hand, if adultery was the cause for the breakdown of the marriage, courts may consider one party’s adultery when deciding whether to order that party to pay spousal support.
Texas also considers a party’s adultery when dividing up the marital estate. In many cases, one party may receive a larger portion of the marital estate if the other spouse has committed adultery, especially if the adulterous partner spent large sums of money on the affair.
Finally, adultery may have some impact on custody decisions. For example, if a party regularly missed birthdays and holidays to spend time with a paramour, the courts will take this into consideration during custody decisions.
On a final note on this subject, I find that adultery doesn’t carry as much weight as many people believe or hope that it should and these days it will really depend upon the judge you are in front of.
16. What if my former spouse is dragging out the divorce?
Divorce attorneys are paid on an hourly basis. Therefore, the longer a divorce takes, the more your attorney has to bill you. Some spouses intentionally drag out a divorce in an attempt to bankrupt the other spouse and get the outcome that they want–after all, if one party has no money left to pay an attorney, how can that party pay to fight the other party?
Spouses may delay a divorce by avoiding service of court papers, ignoring communications from their attorneys, switching attorneys regularly, filing pointless motions in court, and making unreasonable demands.
In many cases, it is possible to request a court hearing to resolve some of these matters. It is also possible to request attorneys’ fees from a party who is dragging the case out. If a party is not following a court order, a contempt action may be filed. The possibility of going to jail often whips non-compliant spouses into shape!
17. When is a divorce considered finalized in Texas?
A divorce is considered finalized once a divorce order has been signed by a judge. The divorce order may lay out the terms of the parties’ agreements, or it may list the court’s decisions following a trial.
18. Are Texas divorces public record?
Texas divorce records are public. Anyone can visit a clerk’s office in the county in which the divorce was handled and request a copy of the divorce filings and other records. Texas clerk of court websites in all counties also provide many divorce records online.
19. What is the difference between legal separation and divorce?
Texas does not recognize legal separation. In a legal separation, the parties are still married, but must act according to a court order as they go through their divorce. With a legal separation, the parties may still be responsible for household bills and marital debts and one party may remain under the other party’s health insurance plan.
Once the parties are divorced, however, their lives are split, they are no longer married, and these obligations disappear. Of course, the parties may have to fulfill certain terms of a divorce order, such as paying alimony or signing over marital property.
20. What is the difference between divorce and annulment?
Although divorce and annulment both end a relationship, these two processes have significant differences.
With a divorce, the couple’s marriage was valid. The couple may seek a divorce on no-fault or fault-based grounds. Fault-based grounds for divorce in Texas are:
- One spouse’s commission of a felony that requires imprisonment of at least one year
- Abandonment by one spouse for a period of at least one year
- Admission of one spouse to a mental hospital
- Living separately and apart for three years.
In an annulment, the argument is that the marriage was never valid in the first place–it is null and void. Grounds for annulment in Texas include:
- One party was intoxicated at the time of the marriage and could not consent to the marriage
- Duress, fraud, or force was used to induce one party into getting married
- One of the parties was already married at the time of the marriage
- The parties are related
- One of the parties did not disclose that a divorce had been granted in the 30 days prior to the marriage
- The marriage took place less than 72 hours after a marriage license was issued
- One of the parties did not have the mental capacity to get married
- One of the parties is impotent and did not disclose this fact to the other party
- One of the parties was underage at the time of the marriage
After both a divorce and an annulment, a judge may order child support and child custody. Parents are still under an obligation to support their children, even if the marriage was never valid in the first place.
21. How do you modify a divorce agreement?
After a divorce is finalized, the circumstances of one or both of the parties may change. For example, one spouse may get a new job that requires him or her to move to a different area. One spouse may remarry, which could impact spousal support. In these situations, it is necessary to file a new case for to modify the divorce decree.
In many cases, the parties may create an agreement on the new terms and enter this agreement into the record. The new agreement becomes the new divorce order that the parties must follow. However, if the parties cannot agree on the new terms, hearings and even a trial may become necessary to resolve the matter.
22. Can you change your last name before the divorce is finalized?
Many individuals are eager to change their names once their divorce proceedings have begun. The request for a name change may be included in the divorce decree, which is filed at the very end of a divorce case. The divorce decree may then be presented at a local Social Security Administration Office to obtain a name change. It is actually cheaper to change your name at the time of divorce.
23. Can you divorce without an attorney?
Yes, it is possible to represent yourself in family court and obtain a divorce. However, without legal guidance through the process, you may unknowingly forfeit your legal rights and agree to terms that you should not agree to.
For example, some spouses may be unaware of the property they are entitled to in a divorce, or they may be unaware of what a reasonable child custody arrangement looks like. Without an attorney, these spouses may agree to terms that hurt them in the long run. It is best to hire an attorney as soon as you begin considering divorce or as soon as you are served with divorce papers.
24. What is the average cost of divorce in Texas?
Every divorce is different, and some are more expensive than others. Some divorces may be resolved in just a few months and cost the parties a few thousand dollars at most. Other divorces may drag on for much longer and cost each party five figures.
In general, the more contested the issues are, the more expensive the divorce will be. It is difficult to give a precise dollar amount on how much a divorce will cost, because the answer largely depends on how long it takes to finalize the case. If several hearings, mediation, and a trial are necessary, it is much more expensive than a divorce in which the parties agree on all of the issues in their case.
25. What does it mean that Texas is a “community property state”?
Loosely speaking, it means that most of the property, both real estate and personal property, that you acquire during your marriage will belong to both of you equally. No matter who paid for it. The basic concept is “Yours, Mine and Ours.” The “yours” and “mine” are what is called Separate Property under the law. The “ours” is what is called Community Property.
“Separate property” is property either
- Owned or acquired by a spouse before marriage or
- Acquired by a spouse during marriage by either
It is the date you got the property and the source of the property that controls, not how it is eventually paid for.
For example, if one spouse owned a house or car before marriage, at the time of divorce it will be that spouse’s separate property, even if it was paid off in whole or in part during marriage. A court has no authority to take a spouse’s separate property from him or her at the time of divorce.
“Community property” is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage. It is important to remember that a marriage legally still exists even after the parties are separated (whether before or after the divorce petition has been filed) so any property obtained after separation will be still be community property. This is true even if the property is not physically received until after the final decree of divorce.
For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or a husband enters into a partnership agreement, this will be characterized as community property. Moral: be careful and be patient.
26. How does the judge divide up our property?
Judges have a fairly wide range of discretion in deciding who gets what in a property division. The Texas Family Code tells us, “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” This is what is called making a “Just and Right Equitable Division,” which I will abbreviate as JARED.
The most important and often-times misunderstood word in a JARED is “equitable”. Equitable does NOT mean equal. Neither you nor your spouse is automatically entitled to a numerically perfect half of everything. Instead, the judge will consider a list of factors and make a decision on who gets what based on what the judge believes to be “fair”. The factors that the court will take into consideration include:
- You and your spouse’s levels of education
- How much money each of you is capable of making
- Any business or employment opportunities available to you
- How big a gap there is between how much money you make, and how much your soon-to-be-ex makes
- Your health
- Your age
- Whether either of you have a need for future support
- Who was awarded custody of the children
- How your amount of separate property compares to your soon-to-be-ex’s
- The condition of your personal finances in comparison to your soon-to-be-ex’s
- How long you were married to each other
- Any fault in the breakup of the marriage
- Whether either of you has been draining assets out of the estate, especially by wasting assets or by giving away community property assets as gifts
- If there was a fault in the breakup, any benefit the “innocent” spouse would have received from staying married
- The nature of the property to be divided
- Tax consequences
- Attorney’s fees
- Whether either spouse has committed fraud against the other
Remember, each one of these is only a factor for consideration. At least in theory, no one factor should completely decide the case; however, every judge is different. Some judges will put heavier importance on some factors due to their own personal opinions and experience. Your lawyer should know or be able to find out what your particular judge tends to place emphasis on and how he or she tends to rule on property division. This will help you and your lawyer strategize your case.
27. How is debt divided in a divorce?
Most married couples accumulate debt during their marriage. Car loans, mortgages, student loans, credit card bills, and other types of debts are among those that will need to be divided during divorce.
The parties may become jointly liable for a debt if one spouse acted as the agent for the other when acquiring the debt, or if the debt was for a basic living expense.
The debt may remain the responsibility of one party if that party’s asset was attached to the debt, or if the debt was incurred by one party before the marriage and did not have a significant impact on the marriage.
The courts will carefully examine the nature of each debt the parties have accumulated in deciding who is responsible for what.
28. Who gets to keep the house in a Texas divorce?
To determine who gets the house in a Texas divorce, one must first examine the nature of the house itself–was it acquired during the marriage, or before? Was the house given to one spouse as a gift, or was it inherited during the marriage? If the house was acquired before the marriage, was inherited, or was gifted, the house may stay with that individual.
If the house was acquired during the marriage, it is community property–both spouses own the house, regardless of how it was titled or who paid the mortgage each month. In this situation, the court considers different factors, such as which spouse is able to take on the home’s monthly expenses, as well as which spouse will receive custody of the children. The party who does not receive the house may receive assets that are equivalent to their share of the home, or the party may be “bought out” by the other spouse.
29. Who gets to keep the pets in a Texas divorce?
Dogs, cats, and other pets quickly become part of the family. In a divorce, who gets the dog? Who gets the cat? Though these furry friends may be considered children in a marriage, legally, they are viewed as personal property. Therefore, rules of property division govern who gets the pets in a divorce.
Texas is a community property state, which means that all property acquired after the parties were married–until their divorce is final–is the joint property of both spouses. If property was obtained before the marriage, or if it was inherited or gifted, it may remain that individual spouse’s separate property.
If the pets are not separate property, the courts will look at who primarily took care of the pets (taking them to vet appointments, feeding them, and so on) and who is better equipped to take care of the pet. In some cases, the parties may actually work out a custody agreement for the pet, where both parties get to spend time with the pet–much like a child custody agreement!
30. What Happens To The Family Business In A Divorce?
A divorce may wreak havoc on numerous aspects of one’s life, especially if one or both spouses were involved in the family business. A business is viewed by Texas family courts as an asset. Assets must be divided during a divorce.
There are several different outcomes for the family business in a Texas divorce. In some cases, each spouse may continue to own the business after the divorce. In other situations, a judge may order the parties to sell the business and split its profits. Or, one spouse may “buy out” the other spouse to retain the business. In this scenario, the spouse that is being bought out may receive assets equivalent to the value of his or her share of the business.
31. Is There A Way To Protect A Business From Divorce?
Many business owners worry about the future of their companies once a divorce has been initiated. However, it is better to plan ahead to ensure a business is fully protected in the event of a divorce.
One way to protect a business is to include it in a prenuptial agreement. In a prenuptial agreement, the parties may lay out how their assets will be divided in case they divorce. In this situation, one party may be able to protect his or her business from being divided or sold in a divorce.
If the parties did not execute a prenuptial agreement, a postnuptial agreement with similar terms may be created after the parties have gotten married.
If multiple partners or shareholders are involved in a company, it is possible to protect their share of the business by having their spouses sign a document that states they have no interest in the business in the event of a divorce. They may also enact a rule that allows other partners or shareholders to purchase a divorcing partner or shareholder’s interest in the business.
Spousal Support Questions
32. Does Texas have alimony?
“Alimony” does not exist in Texas. However, Texas does have spousal support, which are funds paid by one spouse for the support of the other spouse. Texas was the only state in the nation in which a court had no authority to order alimony to be paid after the final divorce.
However, in 1997, the Texas legislation made provisions for very limited “alimony” which requires extensive proof of an inability to support oneself. It is best to talk with your attorney about the availability of spousal support in your case, as each case differs greatly.
Also, the parties may, by agreement (i.e., contract), provide for alimony to be paid after the final decree of divorce is entered. The tax law on alimony has changed in the 2018 tax year so be sure to talk to your attorney and tax professional.
33. How is eligibility for spousal support determined?
Texas is strict when it comes to awarding spousal support. In a divorce in which one party is seeking spousal support, the requesting party must show:
- The spouse seeking spousal support will not have enough assets to provide for basic necessities and
- The spouse requesting spousal support cannot earn enough money to meet basic needs because of a mental or physical disability;
- The couple was married for at least ten years and the spouse requesting spousal support cannot earn enough income to meet basic needs;
- One spouse has been convicted of family violence against the other spouse or children during the marriage (the violence must have taken place either during the divorce or two years prior to the filing of the divorce); or
- The spouse requesting spousal support has custody of a child or children (of the marriage) who need special supervision and care because of mental or physical disabilities, which hinders the requesting spouse’s ability to earn an income.
The spouse requesting spousal support must provide proof of the above elements to prevail.
Of course, the parties may also agree to a spousal support arrangement, regardless of whether any of the above factors are present.
34. How is spousal support calculated?
Once the court has determined that an award for spousal support is appropriate, the following factors will be used to calculate a spousal support amount:
- A history of family violence
- Whether a spouse treated the other spouse cruelly or committed adultery
- Whether one spouse did not work to take care or the home and/or children during the marriage
- The property that each spouse brought into the marriage
- Whether one spouse chipped in for the education or training of the other spouse or otherwise increased that spouse’s earning ability
- Whether a spouse spent community funds in an attempt to drain the other spouse’s resources or concealed, destroyed, or fraudulently disposed of community property
- Whether a spouse is paying child support and how those payments impact the spouse’s ability to cover basic needs
- The length of the marriage
- The employment history, age, physical health, emotional health, and earning ability of the spouse requesting spousal support
- The spouse’s employment and education skills, as well as the length of time it would take for the spouse to obtain training or education
- The spouses’ financial resources and how they will be able to provide for basic needs at the finalization of the divorce
Each of these factors will be carefully considered before determining how much spousal support one party has to pay to the other. Monthly payments are limited to 20 percent of the paying spouse’s gross monthly income or $5,000–whichever is less.
35. Is there any way to receive financial support during the divorce?
Yes. Texas allows for temporary spousal support to be awarded during divorce proceedings. If one spouse does not make as much money as the other, a judge may award temporary spousal support on a temporary basis. Doing so may protect assets from creditors during the divorce proceedings, if one party cannot afford the payments on those assets (such as the marital home).
The parties may also agree on a temporary spousal support arrangement.
36. How does the court determine the duration of spousal support?
In Texas, spousal support is set to certain terms–it does not last forever. The length of the marriage largely determines the duration of spousal support. The rules are as follows:
- Spousal support may not last longer than 10 years if the marriage was at least 30 years in length
- Spousal support may not last longer than 7 years if the marriage was between 20 and 30 years in length
- Spousal support may not last longer than 5 years if the marriage lasted between 10 and 20 years in length
- Spousal support may not last longer than 5 years if the marriage was less than 10 years and the spousal support was ordered because the paying party committed an act of family violence
The courts will generally make the duration of spousal support as short as possible, unless the spouse receiving spousal support cannot earn a sufficient income for basic needs because of a disability, caring for a child of the marriage, or another reason that prevents the spouse from becoming self-supporting.
Spousal support will terminate before the ordered date in the following circumstances:
- The spouse receiving the spousal support remarries or lives with a romantic partner; or
- One of the spouses dies.
37. Can I still get medical insurance benefits from my spouse’s employer after a divorce?
It’s possible that you may be entitled to keep your medical insurance benefits through a former spouse’s group plan under federal law. With the changes in health insurance laws it is very important to speak with your lawyer and even verify coverage with a person’s human resources department. COBRA benefits (provided by the Consolidated Omnibus Budget Reconciliation Act of 1985) are available to the former spouse of an employee that works for an employer with 20 or more employees.
The law states that employers must offer continuation coverage for the first three years after a divorce. Your former spouse’s employer can charge you for continued coverage, but the charge can’t exceed 2% greater than what employees are charged. You can obtain COBRA benefits by contacting your ex-spouse’s employer and requesting the appropriate forms. An application must be filed within 60 days from the finalization of the divorce to receive COBRA benefits.
38. Do I stop receiving spousal support if I get remarried?
Yes, spousal support ceases upon the remarriage of the spouse receiving the payments.
39. When should a spousal support agreement be modified?
After spousal support has been ordered, there may be a number of reasons to modify it. The party requesting the modification must show a significant change in circumstances since the amount was ordered. Examples include:
- The paying spouse changed jobs
- The paying spouse’s income level changed
- The paying spouse has become disabled
Any changes in circumstances that impact the paying spouse’s ability to make spousal support payments may be considered in a modification of spousal support case. It should be noted that spousal support payments may stop automatically if the spouse receiving payments remarries.
If the spouse receiving payments begins living with a romantic partner, payments may also be terminated, but evidence of the relationship must be presented in court before this happens. Finally, if either spouse dies, spousal support terminates.
Child Custody & Child Support Questions
40. What are the types of child custody in Texas?
Child custody is one of the most hotly contested issues in a divorce. There are a few different child custody arrangements in Texas.
Child custody is referred to as conservatorship in Texas. With a joint managing conservatorship, the children primarily reside with one parent, but both parents have a say in the children’s upbringing.
With a sole managing conservatorship, the children live with one parent, and the visitation rights of the other parent may be the same as joint custody arrangement. The visitation arrangement will change depending upon the facts of each case. A sole managing conservatorship is generally awarded if the parents cannot get along or if there has been a pattern of violence.
41. How do you modify a child custody agreement in Texas?
To modify an existing child custody order in Texas, one must file a modification case. If the child’s interests are no longer being served by the child custody arrangement, or if circumstances have changed, a modification may be granted.
The fastest way to obtain a modified child custody order is to reach an agreement on the matter and submit that agreement to the court. However, if the parties cannot agree on the terms of a new custody arrangement, the court must decide them on behalf of the parties.
Common reasons for requesting a modification include:
- Job relocation
- Health conditions
- Either parent is suspected of abusing or neglecting the children
- Marital status changes
- A parent has a substance abuse problem
42. What factors does the court consider for custody agreements?
There are several factors that courts consider when determining which parent should have custody of the children. These include:
- The relationship each parent has with the child
- The health and financial situation of each parent
- Whether there is a history of neglect or abuse
- The child’s age and preferences
- The emotional and physical needs of the child
Courts carefully examine evidence related to each factor in making a custody determination.
43. On average, who is more likely to get custody – the mother or the father?
The courts are not supposed to generally favor mothers or fathers. After examining all of the factors that impact custody, the courts will make a decision as to who should be the primary caretaker of the children. In some cases, this is the mother; in others, it is the father.
44. Do children have a say in child custody decisions?
Once a child reaches the age of 12, Texas family courts will consider that child’s preferences in a child custody order. However, the child’s preferences should not be the only factor considered by the court.
45. How is child custody modified if a former spouse moves out of state?
If a former spouse moves out of state, either that spouse or the other spouse may file a new case and seek modification of the previous child custody order. The designation of a primary caretaker, visitation schedules, division of expenses for the child to visit the relocating parent, and other factors may all be addressed in a new child custody order. Courts will consider what is in the best interests of the child. The specific outcome of the case depends on the family’s circumstances.
46. What is a temporary child custody order?
A temporary order lays out child custody and visitation, as well as the handling of certain assets and debts during the divorce. A temporary child custody order establishes who is the primary caretaker of the children during the divorce proceedings. It also establishes whether child support shall be paid, and, if so, how much child support the parent is entitled to.
47. When do courts order a child custody evaluation?
In especially contested custody cases, a child custody evaluation may be required. According to the Texas Family Code, the process is court-ordered and includes opinions, recommendations, and answers to specific questions the court has on child conservatorship, access to or possession of a child, or other issues involving the children’s best interests.
48. What does a child custody evaluation entail?
Child custody evaluations are highly detailed investigations into matters concerning the children. Both parents will be interviewed, as well as any other individuals living in the children’s home. The children are also interviewed. The child custody evaluator may visit the children’s home regularly.
Additionally, psychological, medical, and criminal background evaluations of both parents may be conducted. Any history the parents have with Child Protective Services will also be examined. Teachers, counselors, religious leaders, and other individuals who have relationships with the children may be interviewed as well.
The children’s medical, school, mental health, and criminal records (if applicable) of the children will also be studied.
At the end of the evaluation, a recommendation will be made as to which parent should be the conservator of the children. The courts take these recommendations very seriously.
Child custody evaluations can be very expensive with some evaluators taking as long as eighteen months to complete.
49. How do courts determine the duration of child support?
A parent ordered to pay child support generally must continue to do so until the child’s 18th birthday or until the child graduates high school, whichever comes later.
If the child is emancipated by marriage or through court action, child support may also cease. Of course, if the child dies, child support payments are no longer required.
However, if the child has a significant disability, child support may be indefinite.
50. Can I get visitation rights for stepchildren?
If you are a stepparent, once you divorce your spouse, you are only an “interested third party” in the eyes of Texas courts when it comes to your stepchildren. However, stepparents may file paperwork in the court system to obtain visitation rights with their stepchildren. Sadly, if either one or both of the children’s biological parents disagree with a stepparent being granted visitation, the courts generally defer to the biological parents’ wishes.
However, it is possible to prevail in these cases. Courts will examine these factors:
- The length of the stepparent/stepchild relationship
- The closeness of relationship of the stepparent and stepchild
- The role the stepparent has taken in the stepchild’s life
- Whether the stepparent has contributed financially to the wellbeing of the child
- Whether the child will be harmed if visitation is denied
The courts will determine if visitation is in the best interests of the child.