FAQs on Family Law

Q. Does it matter who files the divorce petition first?

A. Yes. There are slight procedural advantages to filing first: for one thing, the person who brings the case first gets to talk first, and sometimes first impressions are lasting impressions.

Q. In Texas, do I have to prove fault of the other spouse to get a divorce?

A. No. You do not have to show fault to get a divorce in Texas. However, if there is fault – such as adultery– it can sometimes be a factor in court, depending on the circumstances.

Q. How long will it take to finalize my divorce?

A. A divorce in Texas takes a minimum of 60 days. Texas law requires that the couple wait 60 days after the date the divorce petition is filed to finalize the divorce. How long any individual case takes to resolve depends on many factors. Some courts require a divorce case to go to trial fairly quickly, while other courts are content to let divorce cases languish for long periods of time.

Q. What does a divorce cost in Texas?

A. Several factors such as whether you and your spouse can reach an agreement regarding the property division and children, how long the case has to be litigated before the agreement is reached, whether temporary orders are necessary, whether a trial is necessary, whether discovery is conducted and how reasonable your spouse and your spouse’s attorney are throughout the process affect the cost of a divorce in Texas all affect the cost of a divorce.

Q. How can I keep divorce costs down?

A. The best way to keep costs down is to have the ability to speak and try to reach an agreement with your spouse on issues such as child custody, child support, and the division of marital property. In reaching an agreement, both parties need to be realistic in the agreement expectations.

Q. Can I modify the child-support payment by either increasing or decreasing the amount ordered?

A. In order to modify the amount of child support you must show the court one of the following: (a) the circumstances of the child or a person affected by the order have materially and substantially changed since the date the order was signed; or (b) it has been three years since the order was signed and the monthly amount of the child support award under the order differs by either 20 percent or $100.00 from the amount that would be awarded in accordance with the child support guidelines.

Q. At what age can a child decide with whom he or she wants to live?

A. The court, not the child, is the ultimate judge of where the child’s primary residence will be.  However, at age 12, a child can sign a “Choice of Managing Conservator.” This is a document that communicates the child’s wishes concerning primary living arrangements to the court. In conjunction with this document, a Motion to Modify must be filed with the court before the court can modify its prior order. Although the “Choice of Managing Conservator” document is very persuasive to the court, it is not binding, as the court will attempt to make a decision which is in the child’s best interest (which is not always what the child wants)

Q. What is common law marriage?

A. A common law marriage can be formed by either signing a Declaration of Marriage under section 2.402 of the Family Code or the man and woman agree to be married and, after the agreement, they live together in this state as husband and wife and represent to others that they are married.

Q. Do I need to file a divorce in order to terminate a common law marriage?

A. If you are married pursuant to common law, and no longer wish to be married to your common law spouse, you will need a divorce. If a divorce from a common law marriage is not brought within two years after the parties separate, then there is a rebuttable presumption that there was no common law marriage. Note that the presumption is rebuttable, which effectively creates an informal, but not an absolute,  statute of limitations for common law marriages.

Q. How is property divided in Texas?

A. In Texas, the courts presume that all the property of the marriage is community property. The party who is claiming separate property must prove it by tracing it with “clear and convincing evidence.” The court divides community property in a “just and right manner.” In making the determination, the court takes into consideration factors such as unequal earning power and fault in the marital relationship.

Q. Can I get alimony in Texas?

A. Although getting temporary spousal support (while the divorce is pending) is very common, it is unusual to get post-divorce alimony. You can get post-divorce alimony if you qualify. There are several factors involved which would need to be discussed with your attorney.

Q. Do grandparents have rights in Texas?

A. Under the Texas Family Code, a grandparent can get access (limited visitation) with a grandchild in certain circumstances. Grandparent custody of a child is also allowed under the Texas Family Code if the parents’ consent or if the child’s present living environment presents a serious question concerning the child’s physical health or welfare.