You are here: Home / FAQ




FAQs

  • What is required to prove an informal or common law marriage?

  • A party seeking to establish an informal or common law marriage must prove 1) a declaration of marriage has been signed by both parties that meets the requirements of the Texas Family Code or 2) the man and woman agreed to be married and thereafter began living together as husband and wife in Texas (and represented to others that they were married). There is no minimum time period required for the parties to live together; however, there are additional limitations. If you have questions, feel free to contact Lynn E. Esposito for an evaluation of the particular facts of your case.

  • How long does it take to get a divorce?

  • If the spouses have reached an agreement on all of the relevant issues a divorce may be obtained on the 61st day after the divorce petition was filed. If an agreement is not possible and the case must be tried, the length of time is primarily dependent on the court's docket and complexity of the issues involved. In Harris County, most divorce cases are set for trial within six to twelve months after the divorce petition is filed. In Montgomery County, the length of time to trial depends on the issues involved and the particular court hearing your case.

  • Do I need a "legal separation" from my spouse?

  • While some states recognize a legal status known as "legal separation," Texas does not. Under the Texas Family Code, spouses are married until the court grants a divorce.

  • Where can I file for divorce?

  • You can file for divorce in a county in which either you or your spouse has lived for at least 90 days, as long as that same person has lived in Texas for at least six months.

  • If I was married in another state can I get a divorce in Texas?

  • Where a husband and wife were married does not matter. A party may file a suit for divorce as long as at the time of the filing one party has resided in the state for at least 6 months and within the county in which the suit is filed for 90 days.

  • How is property divided between spouses in a divorce?

  • The Texas Family Code requires that the court divide the community property of the spouses "in a manner that the court deems just and right." This means the court is not required to divide the property 50-50 and can consider a variety of factors in deciding what is "just and right." These factors can include fault in the divorce, disparity in earning power, the separate estate of a spouse, etc.

  • What is the difference between separate and community property?

  • Generally, a spouse's separate property is property that was either:

    • Owned by the spouse before marriage
    • Acquired by gift or inheritance, or
    • Certain kinds of recoveries for personal injuries

    All property accumulated after the date of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.

  • How is child support calculated?

  • In most cases, child support is calculated using a formula in the Texas Family Code. The payor's monthly "net resources" (a term defined by statute) is multiplied by a percentage, which is determined by the number of children at issue (e.g., the percentage for one child would be 20%). The payor is entitled to a reduction if he or she is also legally responsible for the support of another child.

  • What is "standard" visitation?

  • Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) "Standard Possession Order" visitation. The visitation is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce. A very short-hand version of a typical visitation order (assuming both spouses reside within 100 miles) is as follows: the 1st, 3rd, and 5th Friday of every month from Friday beginning at either the time the child's school is regularly dismissed or 6:00 p.m. until the following Sunday ending at either 6:00 p.m. or the time school resumes on the following Monday. Every Thursday beginning at either the time the child's school is regularly dismissed or 6:00 p.m. and ending either at 8:00 p.m. that same night or when school resumes the following morning, as well as 30 days in the Summer, and additional visitation periods for Spring Break, Thanksgiving, and Christmas, the child's birthday, Mother's Day, and Father's Day. While the Standard Possession Order is the most common visitation schedule and presumed to be in the child's best interest beginning at age 3, it may be inappropriate depending on the particular facts of each case.

  • What are temporary orders?

  • Temporary orders are orders issued by a court, after either a hearing or an agreement by the parties, which are designed to last until the divorce is final. Temporary orders commonly address issues such as child support, custody and visitation of the children, exclusive use of the marital residence, exclusive use of vehicles, spousal support, interim attorney's fees, and the payment of debts.

  • If my spouse and I have agreed to all the relevant terms, what is the general procedure for obtaining and finalizing the divorce?

  • It is common for spouses to believe that they have an agreement, but they actually have not addressed all the necessary terms, such as child custody or support, or property division. Assuming all required terms are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. The attorney for the Petitioner (the filing spouse) files the divorce petition and either has the petition served on the other spouse or the other spouse executes a Waiver of Service. The Petitioner's attorney then drafts an Agreed Final Decree of Divorce and any other necessary documents, which are reviewed and signed by the other spouse. The other spouse is free to hire or consult with an attorney of his or her own. After the parties and attorneys sign the necessary papers, the Petitioner and his or her attorney then go to court for a hearing to have the court enter the Decree and other documents.

  • Do I have to show fault to get a divorce?

  • Texas is a no-fault divorce state, which means that it is unnecessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation. However, many fault issues (adultery, cruelty, etc.) are frequently relevant factors in divorce cases because they can have an impact on how the community property is divided, or how custody is decided.

  • What is family violence?

  • Family violence is an action or the threat of an action by a member of a family or household against another member of the family or household that is intended to cause physical harm, bodily injury, physical assault, sexual assault, or reasonable fear of such action. Abuse toward a child of the family or household and dating violence is also family violence.

  • Who can file a protective order?

  • For family violence, any adult in a household can file for themselves or any other member of the household, including a child who needs protection.

    For dating violence, any adult members of the dating relationship can file for themselves.

  • What is enforcement?

  • Enforcement is when a lawsuit is filed against a person for violating a court order.

  • What orders can be enforced?

  • A family court may enforce orders for any of the following:

    • Child support
    • Child visitation
    • Property division ordered in a divorce
    • Spousal maintenance (alimony)
  • Can I recover attorney's fees and court costs in the enforcement action?

  • Yes. Attorney's fees and court costs are generally recoverable in any suit to enforce a court order. The court may order a person to pay attorney's fees and court costs as a condition of a suspended jail sentence, as well.

    The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult The Law Office of Lynn E. Esposito for individual advice regarding your personal situation.


DISCLAIMER:Attorney Advertising. This website is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.