What are the grounds for a divorce or "dissolution of marriage"?
The state of Texas is now a "no-fault" state which means that you may simply state "Insupportability" as grounds. This basically means that you no longer want to be married to your spouse.
What if my spouse DOESN'T want a divorce?
People often believe that if they refuse to file an answer or do not "consent" to a divorce, their spouse can NOT PROCEED. This is very WRONG. If one spouse does not want the divorce, the filing party may be granted a divorce even by "default". This means the the "nonconsenting" spouse was properly served with notice, but failed to act by filing an answer, etc.
Are there residence requirements for getting a divorce?
Yes. In the state of Texas, one must reside in the state of Texas for 6 months and in the county in which the divorce is filed for 90 days prior to filing.
Is there a "waiting period" before my divorce can be granted?
Yes. There is a statutory 60 day waiting period between the date the divorce is filed until the earliest date that the divorce may be granted. There is an exception to this in the case of family violence, etc. Ask your attorney.
Can I change my last name in a divorce?
Yes. Your attorney can incorporate a name change into the divorce decree.
Is there a "legal separation" in the state of Texas?
There are NO provisions in Texas law for a legal separation. Discuss with your attorney how you may protect yourself, your rights, and your assets.
How is property divided in a divorce?
You will need to discuss with your attorney the type of assets you and your spouse have so that your attorney can help determine whether the assets are separate or community assets. There are presumptions under law that assets obtained during the marriage are community and subject to division between the parties and that assets existing prior to the marriage are separate property. Your attorney can best assist you in rebutting those presumptions or preserving them in your favor.Most courts require that the parties attend mediation prior to a final hearing so that they can determine whether any or ALL of the issues regarding property, children, etc. can be agreed upon without the court's intervention. The parties may then prepare a mediated settlement agreement to memorialize all agreements.If the parties cannot agree on any issue, the issue may be heard by the judge at final hearing.
How are child custody and child support issues determined?
If left to the court, primary custody is based upon the "best interest of the child". There are many factors that may be used to determine that best interest, There are also many ways that your attorney can assist you in providing the facts needed by the judge to make that decision.Again, most courts will require the parties to attend mediation to see whether agreement can be reached first. The appointment of an amicus attorney or an attorney ad litem to represent the children's wants and needs may be very beneficial. The parties will usually each pay 50% of the fees for mediation and for the amicus or ad litem.In terms of child support, there are statutes that are used to determine the amount (if any) that a parent will be required to pay to the parent with whom the child or children primarily reside. The parties are certainly able to agree otherwise instead of presenting that issue to the judge; and the judge will generally not disturb or even question their agreement.
What if a parent fails to pay child support or refuses to allow a parent possession of a child AS ORDERED?
You can take a parent back to court for either of these violations through a motion for enforcement. You can also ask that the other party be held "in contempt" for violating the order AND request that they be placed in jail for that contempt. When granted, the judge will ordinarily order the other party to also reimburse you for your attorney's fees!
Can I go back to court to change custody, visitation or child support?
YES. Your attorney can file a motion to modify the designation of primary conservator, terms of possession of and access to a child and/or the amount of child support (an increase, decrease or termination of child support). Your attorney can best advise you how to proceed.
How can I terminate parental rights and/or adopt a child?
In order to adopt a child in Texas, the rights of any existing parent (who is not a party to the suit as in a stepparent adoption) must first be terminated. If the parent does not voluntarily terminate their rights, there are grounds that your attorney can review with you for which the court may terminate the parent's rights anyway. Some attorneys file a suit for termination for parental rights along with the suit for adoption. Your attorney can best advise you for your specific situation.Many other things need to take place to enable the adoption such as a home study, criminal background check, appointment of an attorney to represent best interest of the child, possibly an attorney to represent an absent parent whose rights are being terminated, etc. Again, your attorney can best advise you based upon your unique situation.
What is mediation?
A Mediation is a process by which the parties attempt to reach an agreement on matters in dispute without the necessity of taking those matters before the judge. Most courts now require that the parties attempt mediation BEFORE the court will set the matter for hearing. In mediation, the parties go to an impartial 3rd party (usually another knowledgeable attorney) to present their side of the dispute and what they want to resolve it. The mediator usually meets with each side separately, then goes back and forth to try to help the parties come to an agreement. One real advantage to mediation is that it is THE PARTIES who decide how their case will be resolved. Usually neither party is 100% satisfied with the outcome, but they leave with a certain level of what they were hoping for rather than risk getting much less by gambling on going to court. Only the parties can agree to reach settlement through the mediation. If they are unable to do so, then they will be able to set any contested matter for hearing.
How can I protect my child, myself, or my family in case of an emergency?
A Your attorney can assist you with obtaining a temporary restraining order OR a protective order as needed. These may both be obtained "exparte" (without the presence of the other party) on a temporary basis until a hearing can be scheduled. This is allowed in circumstances in which some irreparable harm may happen in the absence of this emergency order. Talk with your attorney to see if either of these options is appropriate for your situation.
How can I get guardianship of a loved one who is not competent to care for him/herself?
A It is quite possible to get guardianship over a child OR an adult who is not capable of taking care of his or her own person or estate. The guardianship may be either temporary or permanent. Your attorney can guide you through the steps that need to be taken to protect your loved ones.
Does a grandparent have rights to visitation with or possession of a grandchild?
A grandparent may have rights to visitation or even custody of a grandchild under certain circumstances. Again, your attorney can advise you based on your specific situation.