Frequently Asked Questions – Texas Family Law
The following questions and answers provide information on some common Texas family law issues. To read more about our services in these areas, please click here.
I don’t know how to contact my child’s father, and I have decided to give up my child through adoption. What can I do to terminate his parental rights?
Since a child cannot legally have more than two parents, in order to complete an adoption the child’s biological parents must either relinquish their parental rights or have their parental rights terminated. When a biological parent cannot be located, Texas law provides procedures for obtaining involuntary termination of their parental rights. We can assist you petitioning the appropriate Texas state court for involuntary termination of parental rights for purposes of facilitating an adoption.
My spouse and I have decided to divorce, but we are on reasonably good terms and would like to avoid dealing with our divorce publicly in court. Do we have any other option?
Yes. The recently-enacted Texas Collaborative Family Law Act provides a procedure for divorcing couples to resolve their divorces amicably without going to court. In a Texas collaborative law divorce, the parties agree to open sharing of information, and with the assistance of their collaborative law attorneys they work to negotiate a settlement that satisfies each of their respective needs and concerns. A collaborative law divorce is often preferable where the spouses are willing to participate and capable of doing so, as it typically saves time and money as compared to a lengthy court battle and also makes it easier for the children involved in the process.
Another option is an out-of-court settlement process that can be facilitated by an attorney to help you understand your legal rights under the law. Mediation is also available and provides a private and confidential setting to resolve your divorce action. We can provide you with a number of options available for you to make an informed decision on which path is best for you to resolve your divorce action.
My domestic partner and I have decided to separate, but we have substantial joint assets and we also have two adopted children. How do we legally divide our property and establish custody and visitation rights so we can move on?
Since Texas does not recognize same-sex marriages, same-sex couples in Texas must end their relationships through what is known as a domestic partnership dissolution. In a domestic partnership dissolution, former partners can address property division, child custody, visitation, and even support rights in much the same manner as heterosexual spouses would in a divorce. These issues are not tied to the sexual orientation of the parties involved, so appropriate court orders can be obtained to legalize the necessary aspects of the separation. The process to go through a domestic partnership dissolution can also be done in a private and confidential manner through mediation or an out-of-court settlement if the parties agree.
What are the benefits of working with a Texas family law mediator?
Mediation is an alternative dispute resolution method that allows adverse parties to work through their differences in a private setting without the formalities and scheduling restrictions involved in going to court. It allows the parties to flesh out their true interests and concerns, and then work toward developing a creative solution that reasonably meets each of their respective goals in light of the facts at hand. Family law mediation can be used to resolve disagreements among family members, divorce-related disputes, and problems in non-marital relationships.
A family law mediator acts as a neutral between the parties to generate options for the parties to choose the best solution for their dispute. A family law mediator who is also an attorney may also assist the parties in under their legal rights under the law, and if authorized, may act as a scrivener to prepare the necessary legal documents to finalize the parties’ family law case.
When would I need a custody order?
If you’re currently married and in the process of divorce or separation, you would need a custody order. You also may need one if there’s a paternity suit in progress. However, in Texas, we don’t use the terms custody in our orders. The term that is used is “conservatorship” which is a legal term to mean “decisionmaking.”
What does child custody or conservatorship involve?
Custody or conservatorship involves the parent’s decision-making rights as well as the time the child spends living with you. Some legal rights apply to both parents, some may only apply to one (for example, the right to decide where the child will live). There are some that apply to whichever parent the child’s living with at the time. Obviously, most parents want to make sure they retain as many rights as possible.
I’m the father – doesn’t the mother always get custody of the child?
The court will always consider the best interest of the child in determining custody or conservatorship. Generally, courts do not consider the gender of the parent and/or the child when making that decision. In fact, courts in Texas are likely to grant joint custody or joint managing conservatorship to both parents.
Can the child tell the court which parent he/she wants to be with?
The Court may interview a child 12 years or older to understand the child’s wishes. The child must be interviewed by the Court in chambers as to his or her wishes. However, the court will follow the “best interest of the child” standard to make its decision, and not necessarily the wishes of the child.
What’s sole/joint conservatorship?
Sole conservatorship means only one parent has custody and decision making rights for the child. Joint conservatorship means both have rights, but it wouldn’t necessarily be equal; one may have more time and/or rights than the other. In Texas, the court generally order both parents as joint managing conservators because that would be in the best interests of the child. It will then take into account the specifics of the case to see if that presumption is valid for that specific case.
What’s a visitation or possession order?
A Visitation or possession order is an order giving a default set of dates and times for a non-possessory conservator to have access to the child. The dates and times are comprehensive, covering all major holidays.
I have my son for the whole month of August – do I need to pay child support that month?
Yes. Unless your order says explicitly that your child support commitment excludes the month your child is with you, then you have to pay.
My ex won’t let me have my visitation – can I stop my child support payments?
No. Child Support is not tied to visitation. Refusing to pay it will only get you in trouble with the court. Instead, you should pursue enforcement of the visitation order by filing a motion for contempt.
My ex isn’t paying his/her child support. Can I refuse visitation?
No. Child Support is not tied to visitation. You should file a motion for contempt to enforce the existing child support order.
How do I determine my child support obligation in Texas?
In Texas, child support is determined by a formula established by the Texas legislature. The formula is based upon the percentage of the Obligor’s net income. For example, an Obligor with one child should pay 20% of his or her net income. If the Obligor has 2 children, he or she should pay 25% of his or her net income. The more children there are, the greater the percentage. However, if the Obligor has another child with another parent, the Obligor’s child support obligation is reduced by a percentage.
For child support purposes, what is the difference between net income and gross income?
Net income is determined by taking the gross monthly income and reducing it by taking out federal income tax, medicare, and social security. If the Obligor belongs to a union, the Obligor may be given credit for paying union dues. Under some circumstances, other credits may be given, but the court determines the credit on a case-by-case basis.
Do other states use the same formula to determine child support?
No. Every state in the Union is different when determining an Obligor’s child support obligation. Therefore, if you have a child support obligation in another state, you should contact an attorney in that state to discuss the formula for that specific state.
Can I take into account the Obligee’s income in determining child support?
No. In Texas, you cannot take into account the Obligee’s income in determining the Obligor’s child support obligation. In many cases, the Obligee’s income is irrelevant in calculating child support, however, in situations where both parents are sharing custody of the child 50/50, then the Court may take both parties’ income into consideration when calculating their respective child support obligation.
When may I modify my child support?
Generally, you may modify your child support when there has been a significant change in circumstances or when the Obligor’s income has changed significantly that the child support would be increased or reduced by 20% or $100.00, whichever is greater. However, you should consult an attorney to discuss your specific facts to determine the appropriate time to modify your child support.
If I do not want to receive direct payments and want someone else to monitor payments, what can I do?
If you have been receiving child support directly from the Obligor and wish to have it go through a third-party, you have some choices available to you. In Texas, you may also go through the Office of the Attorney General to monitor and process payments. Their services are free but very slow. In each county, there may also be local child support registry to support the courts. These county registries will also charge a fee to process and monitor payments.
Can I have the child support garnished from the Obligor’s wages?
In Texas, garnishment of an Obligor’s wages is mandatory. There are some exceptions to this rule, but this is on a case-by-case basis.
What happens if the Obligor does not pay his or her child support?
If you are the Obligee, you may bring an enforcement action in court against the Obligor. In an enforcement action, along with some other remedies, you may ask the Court to order the Obligor to go to jail or place the Obligor on probation for failing to pay child support. You may hire an attorney to enforce your case or call the Office of the Attorney General. Each option has its advantages and drawbacks. If you hire a private attorney, you have to pay the attorney’s fees. The advantage of hiring an attorney is the speed and certainty that your case will get to court. If you apply at the Office of the Attorney General, you do not have to pay attorney’s fee, but you will have to deal with a very slow moving state bureaucracy that has to manage over a million cases. Therefore, you cannot predict when your case will get to court.
How long is my child support obligation in Texas? I
n Texas, child support ends when the child reaches 18 years of age or graduates from high school, whichever is later. Child support will also end when the child emancipates or marries.
How can I stop my child support obligation?
If you are seeking to end child support, you should seek an attorney’s advice before doing so. If you are an Obligor, the law requires you to pay child support because it is the duty of a parent to care for a child. However, there are a few instances when you can stop your child support obligation, and each of these instances requires the permission of the court. You cannot, on your own action, stop child support without legal consequences. You may abate your child support obligation if you relinquish or terminate your parental rights. However, the courts will not allow you to relinquish your rights just because you don’t want to pay child support. In fact, if the Court finds that the Obligor’s sole reason for terminating parental rights is to avoid child support, the Court will most likely deny the request to terminate. If you are permanently disabled, you may be able to reduce your child support obligation or have your child support obligation paid through your social security. However, the social security administration will make this determination. If you are incarcerated, you may have your child support temporarily abated, however, some courts in some counties do not follow this policy. Again, abatement of child support is very difficult and can only be done on a case-by-case basis.
What is an Agreed Divorce?
In Texas an agreed or uncontested divorce means that the parties agree between themselves on the main issues involved (division of property, retirement funds, alimony, child custody, child support etc.), and the respondent agrees to be served. Your lawyer will then file the petition, waiver of service, draft the final decree, and appear in court in front of the Judge to verify and have the Judge approve the decree. These cases generally involve marriages where there are no children or property. It is very rare that divorces are agreed when there are child custody and property division issues, because tend to be the most contentious issues. If disputes or disagreements arise in an agreed divorce, then your lawyer would need to expend more time and the case would be more expensive.
If we agree on everything, do we still need to go to court?
Yes, you still have to go to court and have the judge approve your agreement and/or decree and grant the divorce. One party will sign the divorce decree and the other will go before the judge for a “prove up”. In a “prove up” your attorney will go through the salient points of the divorce decree by asking you to answer yes or no to certain questions. It generally takes 5 minutes for this, but you may spend all morning or afternoon at court waiting for your turn.
What else is covered in a divorce action?
Apart from dissolving the marriage, it should address dividing the parties’ assets and liabilities, determining child custody, visitation, spousal support, child support, and medical insurance or support.
How long does it take to get a divorce in Dallas / Denton / Collin / Tarrant?
There’s a mandatory 60-day waiting period from the time the divorce pleadings are filed with the court to the day when the court grants the decree. This time period is designed to allow both parties to think things over, determine whether they can resolve their marital problems without a divorce, and have an opportunity to reconcile if at all possible. This is the minimum time; most cases generally take longer than 2 months to resolve because of other issues, such as child custody, child support, and property division.
Does Texas have a “no-fault” divorce?
Yes, in Texas “conflict of personalities” is the term used to denote “no fault”.
Can I get any of my things before the divorce is final?
Yes, in Texas you can ask for temporary orders in a divorce case. This allows a court to determine who gets to keep certain items on a temporary basis until the divorce is finalized.
Do I have to wait until the divorce is final to get child support?
No, temporary orders can also be obtained from the court to determine where the children will live on a temporary basis, and what child support should be paid to the person with whom the children live on a temporary basis.
What are the steps to getting a divorce?
A petition for divorce has to be filed in the appropriate court. If the other party does not agree to the divorce then they will have to be served with a citation and pleadings that have been filed with the Court. Once the opposing party has had a chance to answer the case, and the 60-day period has passed, the divorce can be finalized, provided that the parties have reached an agreement on all issues in the divorce.
What assets are subject to division?
Any assets accumulated during marriage are considered community property and are subject to division by the court. This includes cash, real property, retirement benefits and any other property that comes into the marriage as a result of the labor of either party. The only properties not considered community property are those assets owned before the marriage, such as gifts to one of the spouses and/or inheritances by one spouse.
In Texas, does “Community Property” mean property gets divided 50/50?
Generally, 50/50 will be the initial presumption for any cash, real property, retirement funds or other property that comes to the marriage as a result of the labor of one of the parties, but the Court has the discretion to divide community property in a “just and right manner” which does not necessarily mean that property will be divided 50/50. There are also various circumstances that may deem some property to be “separate” (such as assets owned before marriage, proceeds from a personal injury suit, gifts or inheritances). The issue here is you have to be able to show how the money was spent and how much of it is left remaining. Other instances in the marriage may also affect the split, such as unequal earning power, or fault in the marriage itself, or in the way one spouse handled joint finances during the marriage. The final division will be what the court deems just and right. If you feel that a 50/50 division would not be fair for you, it’s especially important to consult an attorney so that your case can be properly presented to the court.
If my spouse earns more than I do, do I automatically get spousal support?
No, you have qualify to get spousal support. Generally, if it is awarded, it’s for a limited time to allow one spouse to “get back on their feet” after the divorce and be able to support themselves again. In deciding spousal support, a judge will consider the length of the marriage, the health and age of each spouse, whether there was any domestic violence in the prior two years, the ability of each spouse to support themselves, the income of the primary contributor and the standard of living enjoyed during the marriage.
How much does a divorce cost?
It really depends upon each divorce case. The cost is based on the amount of time your attorney spends on your case, either in court, drafting documents, negotiating with opposing counsel etc. Generally the only “fixed cost” divorce is an agreed divorce, with no children, no property and where the other spouse agrees to be served or signs a waiver of service. Your attorney can make an estimate on how much it will take to draft documents, file pleadings and go to court, but it is just an estimate. The final costs will be decided by the complexities in the case, such as negotiations over child custody or property or drafting and re-drafting documents. Remember also that added to the actual attorney work hours are costs. Costs incurred can include filing fees, the cost of having someone served, mediation fees or the cost of a CPA in complex financial matters.
Do I need a lawyer, or can I do it myself?
You can file and process a divorce without hiring a lawyer. There are books and software available that will guide you through the process. Having said that, we get a fair number of cases where people attempted the “Pro Se” (do-it-yourself) approach, only to become overwhelmed or to find out they couldn’t satisfactorily “prove up” the case before the judge. If you have a very simple divorce and want to try this, you need to try to consider all the implications that may cause issues later. Examples of this may be paying off credit card debt or car loans. A lawyer will ask questions about your situation which are designed to protect your rights from the marriage and your interests going forward. If you do decide to do it yourself, do not depend on your spouse to understand the process and draw up the documents. Make sure you understand the process and everything you’re entitled to. This may seem obvious, but we see many cases of an “amicable divorce” where one spouse depended on the other to take care of the proceedings, only to find later that they had received less than their fair share from the proceeds of the marriage. As a result, we have had many cases crop up AFTER the divorce is over where we have had to “modify” the divorce decree to benefit one of the spouses. It tends to be more expensive in the long run to do a modification than to do a divorce right the first time.
I’ve drawn up my own decree, but I want a lawyer to look over it/prove it up for me. Can I do that?
We have many cases where we assist people who are trying to do their own divorce and who have either become overwhelmed or just need assistance in one area. In these cases we charge on an hourly basis to have a lawyer assist you.
The following answers apply only to Mediation performed in the State of Texas.
What is mediation?
Mediation is a forum in which an impartia person, the neutral or called mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his or her own judgment on the issues for that of the parties. TEX. CIV. PRAC. & REM. CODE ANN. Section 154.023(a) and (b)
What are the advantages of mediation?
- Parties control the forum.
- Parties select the neutral facilitator(s).
- Reflects the concerns and priorities of the parties.
- A unique and flexible ADR procedure.
- Non-adversarial and non-adjudicatory approach to conflict resolution.
- Mediator is impartial and non-judgmental; acts as a neutral facilitator.
- High success rate and high rate of compliance.
- Shares the same qualities as that of principled negotiation.
- The process educates the parties about the law, themselves, and each other.
- Addresses the underlying problem(s) between the parties.
- The parties themselves, with the assistance of their attorneys, arrive at a mutually acceptable resolution of their dispute.
- Often results in creative solutions.
- Empowers the parties to control their own destiny.
- Relatively inexpensive.
What are the disadvantages?
- The neutral mediator/facilitator have no power to impose the settlement. Only the parties have the power to agree and settle.
- The neutral mediator/facilitator have no power to compel the parties to participate in mediation. The parties must participate in good faith.
- There are no due process safeguards.
- The powerful party can influence the outcome.
- Usually non-binding unless the parties enter into a binding written agreement.
- Lacks enforceability unless the parties enter into a binding written agreement.
- Outcome need not be principled.
- If the process fails, the parties end up in court litigating their disputes, so sometimes, it’s a waste of money and time for the parties.
How does one get to mediation?
On the written agreement of the parties or on the court’s own motion, the court may refer a suit under Title 1 (spouses and property) and Title 5 (parent and child) of the Texas Family Code to mediation. TEX. FAM. CODE ANN. Section 6.602 and Section 153.0071
How do I know when to use mediation?
Mediation is effective in various types of disputes. The following are examples of when mediation is useful either exclusively as dispute resolution tool or concurrently with a lawsuit. Generally, in most court cases, mediation is required before a final trial.
- Family/Domestic Issues: These cases include pending and/or post divorce issues such as custody, visitation, support, and property division. They can include family conflicts among siblings, parent/child, grandparents, husband/wife, adult siblings, and extended family members. Some cases are court-ordered; others are referred by attorneys, police departments, psychologists/counselors, and human resource centers.
- Juvenile: These cases may be referred to us by the local county juvenile department. They involve juveniles 10-17 years of age who are implicated in property loss or damage.
- Peace Bonds, Civil Matters: At the judge’s discretion, these cases may be ordered to mediation on site at the Justice of the Peace courts. They involve any civil case under $5000.
- Court Annexed Mediation: Cases already in litigation in courts are sent to mediation, and depending on the complexity of the issues and the parties involved, are usually handled by attorney/mediators. These include personal injury, motor vehicle damage, contract disputes, workers’ compensation, sworn accounts, real estate, and insurance problems.
- Insurance: Many disputes involve coverage, premiums, and/or reimbursements of claims.
- Business Agreements: These disputes usually involve business partners and partnership problems or dissolution.
- Consumer/Merchant: Goods that do not work, services that were not rendered properly, payments not made, and repairs more costly than anticipated are the basis for many disputes.
- Employer/Employee: These disputes usually involve circumstances not covered by union contracts or internal employee grievance systems. Included in this care are the following issues: failure to pay wages, job reference information, reason for discharge, leave policies, employee theft or discrimination charges.
- Landlord/Tenant: Disagreements about the upkeep of apartments or rented houses, unwanted entries, noise levels, parking spaces, the time and amount of rent are common sources of disputes. Eviction and non-refund of a security deposit are also frequent causes of conflict.
- Unmarried Couples or Girlfriend/Boyfriend: Sometimes these disputes involve minor children and are about the same issues as elaborated in family law cases. They may also involve harassment, threats, reprisal, or alleged defamation of character.
- Neighbors: Quite commonly, disputes break out between neighbors living next door or across the street from one another. In some cases, an entire block or neighborhood may be involved.
- Dry Cleaners: These disputes concern lost or damaged articles of clothing.
What is the effect of a written settlement agreement?
If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract. The court, in its discretion, may incorporate the terms of the agreement in the court’s final decree disposing of the case. A settlement agreement does not affect an outstanding court order unless the terms of the agreement are incorporated into a subsequent decree. TEX. CIV. PRAC. & REM. CODE ANN. Section 154.071
For more information about these or any other Texas family law issues, contact Helene Parker & Associates, L.L.C. today. We serve clients in Denton, Lewisville, Flower Mound, The Colony, and surrounding areas.For More Information