Family

FREQUENTLY ASKED QUESTIONS

FAMILY AND DOMESTIC LAW

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DIVORCE

Question: What if the other spouse does not want a divorce?
Answer: It only takes one spouse to want the divorce in Texas for it to be granted.

Question: Will the court issue a temporary order granting me custody of our child(ren)?
Answer: Either parent can ask the court to enter temporary orders. If these ordered without a hearing
because of an emergency, then there will be a hearing within 14 days. The court will enter orders
regarding child support, property, and spousal support. These temporary orders, if entered by an
Associate Judge, can be appealed to the elected judge. Currently, temporary orders entered by the
elected judge cannot be appealed until the entire case is over. While Tarrant County and Dallas
County have associate judges, not all of the other counties have associate judges.

Question: Can I file for divorce if I cannot locate my spouse?
Answer: Yes. However, depending on the case and method of notice, this could become very
expensive. In some cases, a court will have no choice but to appoint an attorney to represent the
absent spouse. That attorney's fees are usually paid as court costs by the filing spouse. All efforts to
find your spouse should be explored first.

Question: How long will it take to finish my divorce and can I get remarried that same day?
Answer: With very few exceptions the divorce must be filed with the court for at least 60 days before
the divorce can be granted, even if everyone agrees to a shorter time. Also the time for your spouse to
file answer must have lapsed as well if you are attempting to be granted a divorce by default. If there
are contested matters before the court, the divorce can take considerably longer. You will need the
court to waive the waiting requirements if you wish to marry another person immediately.

Question: If my spouse and I agree to divorce and agree on all the terms that are to be included in the
divorce decree, can we use the same attorney?
Answer: No. An attorney cannot represent both parties in a divorce action. However, while it is in
each party's best interest to obtain an attorney, there is no requirement that both party's be
represented by an attorney.

Question: Can I represent myself in a divorce?
Answer: Yes. A person has the right to represent himself or herself before the court; however the
court will most likely treat you as if you were a lawyer. Do not expect the court or court staff to assist
you.

Question: What If I just want to file for legal separation?
Answer: Texas does not have a cause of action for legal separation, only for divorce or annulment.

Question: What is the difference between a restraining order and a protective order?
Answer: A protective order will be issued if the court finds that family violence has occurred and is
likely to occur in the future. Violation of a protective order may result in criminal prosecution.

In general, a restraining order is intended to keep a party from harassing, threatening and/or causing
physical harm to the other party. A restraining order is also intended to keep a party from draining
financial accounts prior to the time that a hearing can be held. A restraining order is also intended to
keep a party from destroying, hiding or selling community assets prior to the time a hearing can be
held. In other words, the purpose of a temporary restraining order is to help maintain the status quo
between the parties until there is a hearing.

Question: Can I immediately force my spouse to leave our home, or can my spouse immediately
force me to leave our home?
Answer: Yes if there is an emergency with an immediate danger. A hearing over the matter must take
place within 14 days if the Court grants this injunction without the other spouse in attendance.

Question: Does joint managing conservators mean that the kids will live with each parent one half the
time?
Answer: No. Although Texas law typically presumes that parents should be named joint managing
conservators, it does not mean the physical possession is fifty-fifty.

Question: What course of action will the court take if both parents want to be named the primary
joint managing conservator?
Answer: Divorce cases involving custody disputes almost always involve a social study. The court
will appoint a social worker to meet with both parents and the child(ren), gather information about
each parent's involvement with the child(ren)'s education, medical decisions, extracurricular activities
and daily routines, the parents' employment and health records, as well as the child(ren)'s school and
health records. The social worker may choose to visit each of the parents’ homes to evaluate their
living arrangements. The social worker then submits a recommendation for conservatorship,
possession and access to the court.

Question: If I am awarded custody of the child(ren), how much child support can I expect to receive?
Answer: Typically child support guidelines are calculated at 20 percent of that party's net income for
one child, 25 percent for two children, 30 percent for three children and 35 percent for four children
and so on. As additional child support, the noncustodial parent will be required to either provide health
insurance for the child(ren) or, if the custodial parent is providing health insurance for the child(ren),
reimburse the custodial parent for the cost. There are times when the court may deviate from these
guidelines. The court may also factor in other items such as if the non-custodial parent is supporting
other children at his home or through child support to someone else.

Question: Are overtime wages or bonuses included in gross income when child support is calculated?
Answer: Yes. Any income the party paying child support receives from any source, including
overtime, bonuses and dividends from investments, may be included as income.

Question: Do my child support payments go into the child(ren)'s account?
Answer: No. As stated above, child support is paid to the party considered to have primary custody
of the child(ren) and that party is given discretion as to what expenses the child support will pay.

Question: Can I pay my child support directly to my spouse?
Answer: Not typically, as most courts now order child support payments to be made to a local registry
or disbursement unit. The registry or disbursement unit will post receipt of payments so that you
cannot be accused of not making payments. On the down side, if you do not make the payments, the
local registry or disbursement unit works to your disadvantage. The court may presume that if the
local registry does not reflect that you made a payment, you didn't. The burden of proof then falls on
you. If you cannot prove you made payments, you may be subject to sanctions, including being
thrown in jail, losing occupational licenses and your driver's license.

Question: Does child support begin once I am divorced?
Answer: Child support begins when the court orders you to start paying child support, sometimes as
soon as the first day of the month following the filing of the divorce action. There are circumstances
under which a person can be ordered to pay "retroactive child support."

Question: What is wage withholding?
Answer: In any proceeding in which child support payments are ordered, the court must order that
child support be withheld from the paychecks of the person who is obligated to pay child support.

Question: How are uninsured medical bills paid?
Answer: Normally, uninsured medical expenses incurred for the benefit of the child(ren) are to be paid
50/50 by each of the parents.

Question: How old does a child have to be before they can choose who they want to live with?
Answer: As of September 1, 2009, a child twelve (12) years of age may express his or her preference
to the judge if either party requests the court to confer with a child, but a child's preference may no
longer be substantiated by affidavit.

Question: Once a court orders a specific amount of child support, can that amount ever be changed?
Answer: Yes. Family law cases are very fluid. The court has jurisdiction to modify the
conservatorship, access and support of the children in the event of a substantial and material change in
the circumstances of the child or a party. For example, if you become aware that the party who is
paying child support has a greater income than when the court ordered the child support, either
because of a raise, a promotion, a new job, etc., you are permitted to seek an increase in child
support. Conversely, if a party who pays child support has a lesser income then when the court
ordered child support, that party is permitted to seek a decrease in child support. There is a legal
presumption that, if more than three (3) years has elapsed since the entry of the last child support
order, and child support increases more than $100.00 or 20 percent, then a substantial and material
change is presumed.

Question: Because Texas is a community property state, does that mean all assets will be divided
equally?
Answer: Not necessarily. There are two (2) types of property: (1) separate property and (2)
community property.

Generally, separate property is any property that belonged to a party prior to marriage or was received
by gift, inheritance or personal injury claim. Of course, law is never simple. The issue of separate
property is a complex and varied issue and should be carefully discussed with an attorney.

Community property is the concept that all property accumulated during the marriage is equally
owned by the spouses, such as the marital residence or a second residence, furnishings and
appliances, vehicles, financial assets, investments, retirement accounts and privately owned
businesses. If the parties are unable to reach an agreement with respect to the division of the
community property, the court will divide the community property in a just and right manner by
taking into consideration many different factors, including but not limited to fault in the break up of
the marriage, the earning capacity of the spouses, the health of the spouses and the age of the spouses.

The court may so divide certain intangible property, such as the value of a patent on an invention, the
value of the celebrity status of a spouse's name, the goodwill value of a business owned by one
spouse and the value of a professional degree earned by one spouse. The value of these intangible
assets will generally only be divided when both spouses made a substantial contribution to that value,
either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that might be available for valuation and
division. A party's attorney may help with this issue through discovery. During the discovery process,
the parties' attorneys exchange documents that disclose each party's income, assets and liabilities.
Additionally, each spouse may be required to answer questions designed to gather all necessary
information about his or her assets and income.

Again, the issue of separate and community property is complex and should be carefully discussed
with an attorney.

Question: Can the court divide community debts among the spouses in a divorce?
Answer: Yes, but it is difficult to enforce. The courts routinely order the parties to pay certain debts in
a divorce, but if a party does not obey the order and pay the debts he/she is ordered to pay, the court
can only render a judgment to the other spouse. Normally, a judgment is not much benefit to the
other spouse because a judgment is difficult, if not impossible, to collect from most people. There has
to be a large amount of property for a judgment to be effective. The Court granting a divorce does not
extinguish a creditor's right from collecting from anyone just because a divorce was granted.

Question: Does the court order dividing debts affect the rights of creditors to take action to collect a
debt?
Answer: No. If your spouse does not pay a debt which he/she is ordered to pay and for which both of
you are liable, the creditor can sue either or both of you and report it on your credit report. The court
cannot issue an order that impedes the rights of a creditor to take action to enforce its rights against
either one or both of you. Such action would violate the creditor's Fifth Amendment rights.

Question: Can I receive a portion of my spouse's retirement? Can my spouse receive a portion of my
retirement?
Answer: The answer is typically yes. Retirement is a very important and substantial asset of some
marriages, especially long-term marriages. While the answer to this question is based, in large part, on
community/separate property issues outlined above, a spouse is typically entitled to a share of the
other spouse's retirement based on the following formulas:

Pension plan (non-contribution plan):
Number of years married
Number of years in retirement plan x value of retirement plan /2
401K and similar plan (contribution plan):
Value of plan on date of divorce - Value of plan on date of marriage /2
In order to receive an interest in the other spouse's retirement benefits, it will be necessary for your
attorney to draft a Qualified Domestic Relations Order (QDRO), which is typically a separate order or
decree entered by the court at the time your final decree of divorce is signed. QDROs can be
considerably complex and somewhat expensive, but may be very important to you in order to protect
your rights and interests. Large companies may have several employee benefit plans (i.e., 401k
savings and tax deferral plans, profit-sharing plans, FSOPs, etc.) which will require a separate QDRO.
) The formula used to evaluate the community interest is different from that stated above. The
community interest in these types of retirement plans is the increased or enhanced value of the
employee benefit plan since the date of marriage. Retirement benefits should be discussed carefully
with your attorney.

Question: What can I do if my spouse's retirement was not divided by the court in my divorce?
Answer: The Court may enter orders providing for the entry of a Qualified Domestic Relations Order,
or "QDRO," at any time during or after a decree of divorce is entered.

Question: Is alimony available in Texas?
Answer: In a sense, yes. Texas statutes utilize the terms "court-ordered maintenance" and/or "spousal
maintenance" rather than alimony. The court may order temporary spousal maintenance during the
pendency of the divorce case, which typically is limited to three (3) months and is dependent on the
circumstances of the parties, and/or post-divorce spousal maintenance for a period of not more than
three (3) years. It is not common for maintenance to be granted on a final divorce.

Question: Can the wife change her name in a divorce proceeding?
Answer: Yes. Either party can change their name as long as it is properly plead. However, it is not
possible to force the opposing party to change their name if they do not choose to do so.

Question: Can I remarry someone else immediately after my divorce is final?
Answer: No. There is a 30-day waiting period after your divorce is final, unless the court waives the
waiting period.

Question: Can I recover my attorney's fees from my spouse?
Answer: Yes, but don't count on it. The court can give you a judgment for attorney's fees but, in most
cases, it is uncollectible. It is extremely difficult to collect judgments in Texas and few people recover
their attorney's fees. It is more common for courts to divide community property in such a way to
take into consideration a party's legal fees and costs.

CONTEMPT/ENFORCEMCENT

Question: What is contempt?
Answer: Contempt actions are filed at such a time as a person has violated a court order, including but
not limited to child support and possession of the child. The court, upon finding that (1) a person is in
violation of a court order; and (2) all of the technical requirements have been met, may have the
authority to remedy those violations by ordering jail time, and assessing attorneys' fees and court
costs, etc.

Contempt actions, or enforcement proceedings, are quasi-criminal in nature and are the most detailed
motion that a family law attorney can bring, especially given that the accused party may lose his/her
freedom. It is essential, therefore, that the attorney bringing a contempt action be well trained and
experienced in contempt/enforcement.

Question: My ex-spouse (child's other parent) won't follow the court's order. What can I do?
Answer: Any violation of the court's order, including but not limited to a parent's failure to pay child
support on time or at all, failure to allow visitation, failure to return the child(ren) at the end of
visitation, and some property issue,s may be addressed through a contempt action/enforcement
proceeding.

As a general rule, failure to pay child support and denial of possession of the child(ren) have nothing
to do with one another. Therefore, if your ex-spouse refuses to pay child support, your remedy is a
contempt action, not refusing visitation. Of course, the reverse is also true here.

Question: Must my ex-spouse (child's other parent) be personally served to start the enforcement
process?
Answer: The child's other parent must be personally served with the petition, citation and notice.
Otherwise, the court cannot enter enforcement orders against him/her.

Question: What happens if my ex-spouse (the child's other parent) does not appear in court after being
served?
Answer: The court will issue a capias (arrest warrant) and will set a bond to ensure his/her appearance
after arrest.

Question: Is it possible for my ex-spouse (child's other parent) to be incarcerated for failure to follow
the court's child support or possession order?
Answer: Yes. Enforcement actions have both a civil and criminal aspect. The court may, among a
number of choices, jail a person for up to six (6) months for each separate act of contempt.

Question: Can my ex-spouse (child's other parent) he ordered to pay my legal fees?
Answer: It is typical for the court not only to order a person found by the court to be in contempt to
pay (or reimburse) the other party's legal fees and court costs, but to place the other parent in jail until
the legal fees and court costs are paid in full. This is a form of civil contempt and is usually limited to
those cases in which the court believes the party placed in jail has the wherewithal to pay the fees,
costs and/or support ordered.

MODIFICATION

Question: Do I have to wait a certain amount of time before I can file a suit to modify child support?
Answer: A suit to modify child support may be filed if (1) the circumstances of the child or a person
affected by the order have substantially and materially changed; or (2) it has been three (3) years
since the order was entered and the amount of child support will differ by either 20 percent or
$100.00.

Question: My ex-spouse (or the other parent) is the primary conservator of the child, but I want the
child to live with me. Do I have to file a modification?
Answer: Yes. However, you must show the court that either (1) the circumstances of the child or
either parent has substantially and materially changed since the prior order; (2) a child is 12 years of
age or older and tells the judge in chambers their preference; or (3) the primary conservator has
voluntarily relinquished the primary care and possession of the child for at least six (6) months.

Question: Where will we file for the modification if everyone has moved?
Answer: The child's county of residence if the child has resided in that county for six continuous
months. A Motion to Transfer Venue can also be filed at that time as well.

Question: Can I recover my attorney's fees in a suit to modify?
Answer: Yes, but the judge has to award these fees and might not do so. Collecting fees is not always
possible.

ADOPTION

At this time, our firm does not handle adoptions. The below is general information.

Question: What is the difference between a adoption with an agency and an private adoption?
Answer: In agency adoptions, the agency acts as a go between with adoptive parents and birth
parents. The agency can sometimes facilitate the process of the adoption. A private adoption, also
called an independent adoption, the adopting parents and the birth parents complete the adoption
themselves. Usually with the aid of an attorney.

Question: Can my new spouse adopt my children?
Answer: Only if the other parent's parental rights are terminated prior to the adoption taking place. If
the birth parent refuses to voluntarily relinquish their rights, that can sometimes block the Step-parent
adoption. The courts take the involuntary termination of parental rights very seriously.

Question: Can I adopt my grandchildren?
Answer: Yes. But some courts are hesitant to grant the adoption.

CALL TODAY!

Tarrant County (817) 860-2500

Dallas County (972) 978-8959