Wednesday, January 16, 2013

Top 10 Divorce Questions

Top 10 divorce questions:
1. How long does it take to get a divorce?
Texas requires that the petition have been filed at least 60 days prior to the divorce being granted.  Therefore, the divorce can be granted on the 61st day.  
2. Do I need a “legal separation” from my spouse?
Texas does not recognize the legal status known as “legal separation.”  
In Texas you are either married or divorced. 
In Texas the parties are married until the day the divorce is granted.

Your divorce is technically not final until 30 days after the Judge signs the Final Decree of Divorce. You are supposed to wait 30 days after your divorce to re-marry in the State of Texas.  
3. Where can I file for divorce?
You or your spouse must have resided in the county of filing for at least 90 days prior to filing and in the State of Texas for at least 6 months.

So if you move from Galveston County to Harris County you might have to wait for 90 days to file your divorce.

If you left Louisiana with the intent never to return and moved to Texas, then you need to wait 6 months to file for divorce in Texas.  
4. How is property divided between spouses in a divorce?
Usually the property division is 50/50.  But no court is going to take a chainsaw and cut the automobile and the couch in half! 
Technically the Texas Family Code says that the Judge is required to divide the community property “in a manner that the Court deems just and right.” This means the Court is not required to split the property equally. A number of factors can be factored into determining what is “just and right,” such as fault in the divorce, disparity in earning power, disparity in amount of separate property, etc.
5. What is the difference between separate and community property?
There are three types. First, certain types of personal injury recoveries are separate property, but this is quite rare. Second, gifts and inheritances are separate property. Finally, property that was owned by a spouse prior to marriage is that parties separate property.

6. How is child support calculated?

Child support in Texas is based on a person's "net resources".  Net resources is not just income.  It includes all sources of income - rental income, side jobs, interest earned, money regularly received from friends and family, gambling earnings, etc.  Tax returns are used to determine a person's net resources.  

A person's pay stub is used to determine their child support too.  A person's gross monthly income is used.  That amount is then reduced by allowing for certain deductions -- such as federal income taxes.  Certain deductions - 401k contributions are not considered when calculating child support.  Child support is calculated using a formula fro the Texas Family Code.  The percentage paid is 20% for the first child then 5% for each additional child - unless there are other minor children not before the court that the person can prove that he is already paying child support on - then the person would receive a small reduction in the percentage.  (A person would not receive a reduction for step-children that live in the household.) 

In calculating child support, it is irrelevant what the other parent earns.  Therefore, the other parent could be a multi-millionaire or could be re-married to a multi-millionaire and it is irrelevant.  

Lastly, the parent paying child support could re-marry a multi-millionaire and it is irrelevant since that person is not responsible for paying child support for their step-children.  

7. What is “standard” visitation?
In the vast majority of Texas divorces involving children both parents are named as Joint Managing Conservators (often referred to a JMC) with a shared division of parental rights.  In the State of Texas, JMC is presumed.  In order to be named Sole Managing Conservator, you must show the Judge that there is a reason that both parents should not be named JMC.  This can be a difficult burden to overcome.

One of these parents will in effect be primary, that is the parent whom the children live with more of the time, typically the same parent who receives child support.  Most commonly the other parent will have visitation and pay child support.  The children also need to be covered on health insurance.  Uninsured medical expenses are normally shared by the parents.

The visitation schedule most often used is the Standard Possession Order (often referred to as a SPO) visitation, which is directly from the Texas Family Code.   Texas Family Code spells out the details of Standard Possession Order visitation in minute detail,   A summary of a typical visitation schedule based on the statute is as follows: the 1st, 3rd, and 5th Friday of every month from Friday (beginning at either school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m., every Thursday beginning at either school dismissal or 6:00 p.m. and ending either at 8:00 p.m. that 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, depending on whether it an odd or even numbered year. This is a very common schedule, but it may not be suitable depending on the circumstances of the  case.

Generally, visitation for children under the age of 3 years old is not over-night.  And, if the parents live more than 100 miles away from each other then the visitation will be different because the Thursday night visits are not reasonable so the Texas Legislature has added more time in the summer to compensate for missing Thursday nights.

I like mediation because it allows the parties more flexibility in determining their visitation schedules.  Often the visitation schedule set out in the Texas Family Code will not work for the families that I  work with.  At mediation we are able to work together to create a schedule that works better for the parents and the children.  If a Mediated Settlement Agreement (also called a MSA) then the Judge has to follow the agreement that the couple reached during mediation.  
8. What are temporary orders?
Temporary orders are entered after an agreement between the parties or after a hearing in front of the court. Some courts will order the parties to mediation before holding a temporary order hearing.  The purpose of temporary orders is to govern important issues that need to be addressed while the divorce is waiting to be finalized.  Practitioners often call them “band aid” orders because they are designed to hold things together until a final order can be reached. They most frequently involve issues such like custody, visitation, child support, spousal support, exclusive use of property, including the marital residence, and, sometimes, even interim attorneys fees.
9. If both spouses are in agreement on the divorce, how do we finalize the divorce?
Often both parties want a divorce but frequently they cannot agree on the specific terms in the final paperwork.  For example, if the couple owns a house and both parties are on the mortgage, the party leaving the house probably does not want to remain liable on the mortgage for the length of the loan.  A judge cannot move a person's name from a mortgage - only a mortgage company can voluntarily remove a person's name from future liability on a mortgage.  Remaining liable on this mortgage will probably make both parties unable to buy another home in the future.  And, you cannot force a mortgage company to re-fiance the property if the other party has bad credit.

Be aware that one attorney cannot represent both parties in the State of Texas.  It is unethical for an attorney to do so.  The State Bar of Texas has advised family law attorneys not to attempt to represent both parties in family law cases.

Divorces involve a lot of potential issues such as child custody or support, property division, spousal support, and many others. If all the relevant issues have been agreed to finalizing the divorce can be a relatively straightforward legal procedure. An Agreed Decree of Divorce, along with any other necessary transfer documents, will need to be prepared and executed by both parties.  After all necessary papers are signed by the parties and attorneys one of the party’s and their attorney will go to court to do a prove up hearing to have the court grant the divorce.

Please hire an attorney to do your paperwork.  I've seen so many pro se litigants (people without attorneys) create disasters for themselves that then cost themselves thousands of dollars to fix the mess that they have created - usually regarding retirement plans & real estate.  If you have a retirement plan or real estate, please, please, please hire an attorney -- you truly cannot afford not to hire an attorney.  

Please don't buy a legal kit off the internet, off the television or radio.  Please listen to them carefully - these kits are sold by people outside of the State of Texas -- they were not designed by Texas attorneys!! The ones that I've seen are junk! And good luck getting your money back -- the guarantee is good for 60 days -- but a divorce it Texas takes a minimum of 61 days!!  Also, all clerks are required to accept any paperwork handed to them - but a clerk at a courthouse is not an attorney.  These clerks are also required to accept blank paperwork too!  (Even if you ask their opinion, they can't give you an opinion because they are not allowed to practice law without a license in the State of Texas since it is a felony.)
10. Do I have to show fault to get a divorce?
Since Texas is a no-fault divorce state it is unnecessary to show fault in order to obtain a divorce.

In order to finalize a divorce, one spouse must testify under oath in front of a judge that there has been martial discord and is no reasonable chance of reconciliation - this is the "no fault" language used in the State of Texas.

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.  If there is no property to divide, then it is often irrelevant to plead fault issues.


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