Here are some common questions many clients have about the divorce process and child custody.
Q: How long must I live in Texas before I can file for divorce here?
A: A suit for divorce may not be maintained in this state unless at the time the suit is filed either the husband or wife has been a:
1) domiciliary of Texas for the preceding six months; and
2) resident of the Texas county in which the suit is filed for the preceding 90-day period.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the “Petitioner,” while the other party to the divorce is referred to as the “Respondent.”
Q: What is “venue,” and what is the proper venue for a Denton County divorce case?
A: “Venue” refers to which particular county, of those having jurisdiction, is the proper court for a particular case. 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.
Q: Is There a waiting period for a divorce action?
A: Yes. After the divorce is filed, there is a minimum sixty-day aiting period before the divorce can be granted. Most cases take more than sixty days, to learn what property there is, what the issues are, and to either finalize the agreed documents, or to prepare the case for trial.
Q: What is meant by “grounds for divorce?”
A: A “ground” is one of the legally-recognized reasons, or justifications, for a divorce.
Q: What are the divorce grounds in Texas?
A: No Fault - on the petition of either party to a marriage, 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 marriage, and prevents any reasonable expectation of reconciliation.
B: 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.
Q: What does the term “spousal support” mean?
A: “Spousal support” (sometimes 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 “payee spouse.”
Q: 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 support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What is the duration of alimony (spousal support) payments?
A: To receive alimony after divorce, generally, you must have been married for a period exceeding 10 years, and in certain situations, you may be qualified to receive up to $2,500 per month for a maximum of three years. That period may be extended if there is a disabled child or spouse.
Q: What factors will the court consider when determining how much alimony 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 additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds, and the length of the marriage.
Q: On what basis does the 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.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage, or by gift or inheritance at any time, is excluded from the marital estate unless it has been ‘comingled” with community property such that it is no longer distinguishable. 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. We will be happy to meet to discuss your particular situation with you.
Q: 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. In Texas, “Conservatorship” is “Custody” of the children. 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. “Possession and access” speaks to when each parent has the right to visit with, and spend time with, the child(ren).
Q: If the parents cannot agree on conservatorship and access issues, on what basis will the court decide?
A: These matters, like all of those pertaining to children, are based upon the court’s determination of the child’s best interest.
Q: 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 child(ren).
Q: To what should the parties look for guidance regarding the 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 child(ren).
Q: When does the duty to pay child support end?
A: Absent marriage or other acts which would emancipate the child, child support orders continue until the child reaches age 18. 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.