Frequently Asked Family Law Questions
Whether you are thinking about divorce, have a child custody issue or are seeking paternity of your son or daughter, you're bound to have 1,000 questions. And all of them are valid.
At W. Tyler Moore, PC, we have been representing the interests of Texas family members for over 40 years — and we've heard and answered a lot of questions in that time. Although your questions — and the answers to your questions — will differ depending on your specific situation, here are a few of the most frequently asked family law questions in Texas.
*INTRODUCTION TO FAMILY LAW COURTS*
What are family courts?
The judges of the family law courts hear cases concerning family law matters, including divorce and child-related matters. In Harris County, there are 10 family law courts, and each court is identified by a district number. The courts are the 245th, 246th, 247th, 280th, 308tt, 309th, 310th, 311th, 312th and 507th. At the time of the filing of your lawsuit, the case will be randomly assigned to one of the 10 family law courts. Each court has a presiding judge elected by the voters of Harris County. In addition to the presiding judge, an associate judge may handle many matters involving your case.
What are juvenile courts?
In juvenile court, the primary focus is on lawsuits filed by Harris County Child Protective Services (CPS) and cases brought by the district attorney's office alleging violation of the law by a juvenile. These cases are generally heard in the Harris County Juvenile Justice Center, 1200 Congress, Houston, Texas, in the 313th and 314th District Courts.
Are there rules that must be followed in a family lawsuit?
Yes. There are certain rules of procedure and evidence that apply generally to all Texas courts. In addition to the state rules, the Harris County family law courts have adopted local rules that govern how family law cases proceed through the courts. A copy of the rules may be obtained through the district clerk's office and should be obtained at the beginning of a case.
If I file a lawsuit, how long will it take before my case is finalized?
There are approximately 36,000 family law cases filed each year in Harris County. The time required to complete your case may depend on the complexity and type of case. A totally uncontested divorce may take only the minimum time (61st day from the date of filing), while a child custody case or complex property case may take a year or more.
What is mediation?
Mediation is a process where parties to a dispute meet with a neutral person, called a mediator, to try and resolve areas of conflict. The parties, their attorneys, if applicable, and the mediator discuss the goals of each party and the reality of each party's position.
Is mediation required in family law matters?
Generally, yes. The party filing a family lawsuit signs a statement saying he or she will try, "in good faith," to resolve the conflict without court intervention, generally through mediation.Prior to the final hearing, and sometimes prior to a temporary hearing, the court will likely order mediation or the parties may agree on a mediator and schedule mediation.
What are the advantages of mediation?
Mediation gives the parties more control than a trial does. Mediation provides certainty in the result, saves trial costs and attorney's fees, helps save the court's time, and is generally a friendlier process for the parties. Without going to mediation, the time required to get to trial can add months to the resolution of the case. A substantially large percentage of cases will settle at mediation.
Do mediators charge a fee, and if so, who pays the fee?
It depends. There are mediators and organizations in Harris County that perform mediations based on the ability of the parties to pay. Generally, the parties split the cost unless they agree otherwise. Most mediators set their fee based on their experience and qualifications and they usually charge by the whole or half-day.
What happens to the case after mediation?
If an agreement is reached at mediation, the agreement is presented to the judge in the form of an order and generally approved. If no agreement is reached, the case will proceed and the disputed issues will be heard by the judge or a jury, if appropriate.
*MARRIAGE AND DIVORCE*
Does Texas have an age requirement for marriage?
Yes. Both parties must be at least 18 years old to obtain a marriage license. If either party is under 18, parental consent or a court order is required.
Must fault be found against a party for a divorce to be granted?
No. In Texas, a divorce may be granted without either party being at fault. A divorce may also be granted when one party is found to be at fault in the breakup of the marriage. So long as a petitioner filing a "no-fault" divorce persists in the suit, the divorce will be granted. It is merely a matter of time.
How long must I live in Texas to get a divorce here?
Before filing, one of the spouses must live in Texas for at least six months and in the county where the divorce is filed for at least 90 days.
What is a board-certified family attorney?
Attorneys who meet certain qualifications set out by the State Bar of Texas may become board-certified in family law, evidencing their level of knowledge and experience in this area of the law.
How do I begin my divorce suit?
A petition for divorce must be filed in the district clerk's office and the required fees paid.
What if there are children of the marriage?
If there are children born, adopted or expected during the marriage, the suit for divorce must also address matters of custody, visitation and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not or may not be the biological child of her husband, that information must be given to the court as soon as possible.
Who is the "petitioner and who is the respondent?
The party filing for divorce first is called the petitioner and the other party is called the respondent.
Does my spouse get notified after I file my petition?
Yes, your spouse must be notified. It is up to you or your lawyer to make certain the proper steps are followed to notify your spouse.
What happens after my spouse is notified of the filing?
Once a respondent is officially notified, there is a deadline to file a response to the petition. If the deadline is not met, the petitioner may be able to go forward and obtain a divorce by default.
Can my spouse also ask for a divorce?
Yes. The respondent may file his or her own request for divorce in a document usually called a counter-petition for divorce.
How soon can the court grant a divorce?
A petition for divorce must be on file with the court for at least 60 days before the court can grant a divorce.
How long does it take to get a divorce?
If the parties agree, a divorce proceeding can be finalized soon after the 60-day waiting period is over. If the parties are not in agreement, the time it takes will depend on the court's schedule and the complexity of the case. From start to finish, the divorce process may go through several phases, which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial and appeal. A divorce in which the parties are not in agreement on some or all issues will usually take several months and up to one year if a trial is necessary.
When am I legally divorced?
You are divorced when all the property and child-related issues are resolved and the presiding judge signs an order, usually called a decree of divorce.
How long must I wait to get married again?
In most cases, you must wait 30 days, but the court can grant a waiver to permit you to marry sooner.
DIVISION OF PROPERTY UPON DIVORCE
What is community property?
It is presumed that all property acquired by the parties during the marriage is community property.
What is separate property?
Separate property is property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance. It can also include money recovered for personal injuries.
How does a party prove that an item is separate property?
There are a variety of methods to prove the separate nature of an item of property. Generally, however, a party must provide evidence of when and how he or she received the property. If it has changed form by being sold and the money held or reinvested, then the party must also provide evidence tracing the change from one form into another.
Does the judge divide the community property 50-50?
It depends. The judge divides community property and liabilities in a "just and right" manner and this may result in the judge giving more property to one spouse. Even if a jury hears the case, the judge still divides the property.
What factors does the judge consider when dividing property and liabilities?
In making a division, the judge can consider any relevant factor, which might include evidence of:
1. Fault in the breakup of the marriage
2. Differences in earning capacities and education
3. Age of the parties
4. Health of the parties
5. Any special needs of the parties
6. Separate property of either spouse
Who decides the value of my property?
Each party provides the judge with an inventory, which identifies the property and lists its value, identifies community liabilities of the parties and sets forth each party's claim to separate property. The judge or the jury (if a jury hears the case) decides the value of the property, based on the evidence, when there is a dispute.
ALIMONY IN TEXAS
What is alimony?
Alimony is a periodic payment of money from one spouse for the support of the other spouse.
What is maintenance?
This is alimony that may be ordered by the court for the support of a spouse after divorce and, like contractual alimony, the person receiving the alimony must pay income tax on the money. There are substantial legal distinctions in Texas between "maintenance" and contractual alimony. Check with your attorney.
Can either a husband or a wife receive maintenance?
How long can court-ordered maintenance last?
The judge can set a time up to 10 years, depending on the length of the marriage, unless the spouse receiving maintenance cannot become self-supporting in that time period due to an incapacitating physical or mental disability or other facts specified in the statute.
How does the judge determine the amount of maintenance to be ordered?
The amount of maintenance will either be $5,000 per month or 20 percent of the paying spouse's average monthly gross income, whichever is less. The Legislature is expected to revise these amounts.
If my spouse doesn't pay the alimony, what can I do?
Depending on the type of alimony, you may do one or more of the following:(1) Ask for a wage-withholding order
(2) Sue to enforce the contract if the alimony is contractual
(3) Sue for enforcement by contempt of the court's order
(4) Seek a money judgment if the alimony is maintenance ordered by the court
What exactly does custody mean?
In Texas, custody or conservatorship is a term that is used to define the rights each parent will exercise for the benefit of the children and specify who will make certain decisions on their behalf.
How much child support will I receive or will I have to pay?
Child support is set according to a formula and the specifics should be discussed with an attorney. Generally, however, under Texas law, child support is presumed to be proper if set at the following percentages:
20 percent of net resources for one child
25 percent of net resources for two children
30 percent of net resources for three children
35 percent of net resources for four children
40 percent of net resources for five children
Not less than 40 percent for six or more children
How will child support be paid?
It will be ordered paid monthly or semimonthly. Unless the parties agree or the court finds a good reason not to, child support will be deducted from the salary of the person paying support. This is called wage withholding.
What if the support is not paid?
You can ask the court for help in enforcing the order. Enforcement of court orders is discussed in a later section of this handbook.
For information on other topics — or advice specific to your situation — contact our office in Houston, Texas, today to find out how we can help you. Complete our online contact form or call us today at 713-322-3950.