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Divorce and Child Custody FAQ

Nov 30 2014

Frequently Asked Questions about Divorce and Child Custody

Q1:  For how long must a person live in Texas before he or she can obtain a divorce in Texas?

A: The wife, the husband, or both spouses must have lived in Texas for at least the most recent six months (this is referred to as “being domiciled in Texas”)
Had a home for at least the last ninety days, in the particular county in which the divorce case will be filed (this is what is meant by “being a resident” of that county).

Q2:  What do some terms commonly used in Texas divorce proceedings mean?

A: The spouse who initiates the case, by filing an Original Petition for Divorce, is known as the “Petitioner.” The other spouse is designated as the “Respondent.” When “Venue” is proper for the divorce case, that means that the divorce is filed in the right county. In Texas, proper venue for the divorce action is in the District Court within a county in which the residency requirements (discussed above) are met.

Q3:  How long does a divorce case have to be on file with the court before a divorce can be granted?

A: Once the divorce case is filed, there is a minimum sixty-day waiting period prior before the court has the power to grant the divorce, except in cases of Family Violence. But, most contested cases are on file longer than sixty days, because it usually takes more than sixty days, to learn what issues remain contested and what the evidence is for those issues. Also, if a trial will be necessary, the court often requires the parties to mediate the case prior to trial. Drafting and having final documents entered also will usually take awhile.

Q4:  I have heard people talk about “having grounds for divorce.” What does that mean?

A: “ground for divorce” means simply a basis on which the court may grant a divorce. In most cases, the grounds used are so-called “No Fault” grounds (discussed below).

Q5: What are the recognized grounds for divorce which are recognized in Texas?

A: No Fault—this means that the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of the marriage; and, there is no reasonable expectation that the spouses will reconcile with one another.

There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the failure of the marriage. Cruelty, adultery, confinement in a mental hospital, and concealed divorce are fault grounds recognized in Texas.

Q6:  What is “spousal support” under Texas law?

A: “Spousal support” (sometimes informally called “alimony”) is money paid by one spouse to the other to compensate a spouse for the loss of income which will be experienced by the spouse who will receive the spousal support.

Q7:  Is spousal support available while the divorce is pending in court, or only after the divorce has become finalized?

A: The court may order that one spouse pay spousal support to the other spouse while the divorce case is ongoing, as well as after the case ends. There are different standards which apply to each of those types of spousal support payment programs.

Q8:  What factors will the Texas court consider when determining how much spousal support to award to a party?

A: The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The court will also consider whether the person seeking spousal support is disabled, or is the full-time caregiver of a disabled child. And, the Texas Court will additionally consider the health and age of the party's ability to work, responsibility for children, availability of funds, and the length of the marriage.

Q9:  On what basis does a Texas court decide how marital property is divided?

A: Texas is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.

Q10:  What is “Separate property.” 

A: The Texas Constitution defines “Separate Property” and “Community Property.”While the definitions are straight-forward, applying them to a particular marriage can be tricky and complicated, especially if the marriage is a long one; if gifts and inheritances have been received by the parties, if monies were not kept in separate accounts, and if separate property was productive (i.e. it earned interest or income). Additionally, there can be issues of “Equitable Reimbursement” which arise from certain uses of Community or Separate Property.

Q11:  What happens to that “Separate Property” during a divorce case?

A: This question concerns whether property owned by one of the parties should be included in the marital estate for purposes of the court’s property division. Generally, property is “separate” if it was acquired before the marriage, or by gift or inheritance at any time. Sometimes, one or more items of property “mutate” to another item or items of property. “Separate Property,” once proven to be such, is excluded from the marital estate unless it has been ‘co-mingled” with community property to the extent that it is no longer distinguishable from the community property.

There are a lot of tricky considerations concerning Texas Community Property Law, such as whether income from separate property is separate or community property, or whether the parties may agree between themselves to alter the character of certain items or classes of their property. An experienced Texas Family Lawyer can explain these issues to you.

Q12:  I have heard that the presumption in Texas is that the parents of a child should be appointed as “Joint Managing Conservators.” Does that mean that the parents split time with the children 50-50?

A: No. “Joint Managing Conservators” means that the parents share rights and duties to to their children. This means that both parents should be involved in the making of important decisions for their child, such as on school issues, and when a medical decision is needed. The “Standard Possession Order” awards possession and access to the children. And, it is presumed to be in the best interest of a child who is 3 years of age or older.

Q13: What is Managing Conservatorship (custody) and possession and access (visitation)?

A: In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children (see above). In Texas, “Conservatorship”is the equivalent of “custody” of the children. Those two terms are not identical in meaning. “Conservatorship” recognizes that parents have duties to care for their children, rather than merely the right to temporarily “own” them, such as with property.

The right to Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final Court orders, so that each parent will be able to be involved in the children’s lives. “Possession and access” speaks to when each parent has the right to visit with, and spend time with children from the marriage.

Q14:  If the parents cannot agree on conservatorship and access issues, on what basis will the court decide those issues?

A: These matters, like all of those pertaining to children, are based upon a finding by the court of the children’s best interest. As discussed above, the Texas Family Code contains a “Standard Possession Order” which is presumably in the children’s best interest. So, while the court does not have to follow that Order, that is where the discussion starts, and often, where it ends.

Q15: What is “child support?”

A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the children.

Q16: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?

A: The Texas Family Code contains guidelines for the computation of child support. The guideline amount is presumably the minimum amount which should be awarded as support for the children. If any child has “Special Needs,” then additional child support may be awarded.

Q17: When does the duty to pay child support end?

A: Unless the child marries sooner than age 18, joins the military, or does something else to become “emancipated”prior to turning 18 years of age, child support orders continue until the child reaches age 18. But, if the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college, or the payment of college expenses. But, the parties may provide for the payment of those expenses by contract.

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The Heiman Law Firm provides professional family law services in cases such as divorce, child custody, child support, CPS, adoption and more. We have been proudly serving clients, primarily in Denton County, for over 25 years.

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