• How can I get an “online divorce?”
You can order forms designed to do a “do it yourself” divorce, online, but you cannot do a divorce “online.”
• How long will it take to get my divorce?
The state of Texas requires that an original petition for divorce be on file for a minimum of 60 days before a divorce can be finalized. Generally, if your divorce is agreed, and the final decree of divorce is drafted and signed, you can probably be divorced shortly after the required 60 days. If your divorce is contested, it is difficult to say how long it will take. A divorce can take 6 to 12 months or more if contested.
• Will my spouse have to pay my attorney’s fees if I don’t have any income?
If you don’t have income or access to cash or bank accounts, your attorney can set a hearing to request that the court order your spouse to pay your attorney’s fees.
Remember, in Texas, we are a community property state. Your spouse’s income, bank accounts, retirement accounts, regardless of the fact that they may be in your spouse’s sole name, are presumed to be “community” property of the marriage.
If your spouse has access to enough money to pay a retainer and you don’t, the court may require that your spouse pay your attorney fees. If your spouse has no income and no credit cards, retirement accounts, etc., and you don’t either, you can’t count on the court for an order requiring your spouse to pay your attorney fees for the divorce process. Even the courts, with all their power, can’t make money magically appear.
• I won’t be able to pay bills if I file for divorce because I am a stay-at-home mom. Are there any options for me?
Yes, there are generally good options for a stay-at-home mom, at least while the divorce is proceeding. If your spouse’s wages have been sufficient enough to allow you to stay at home with the children rather than work, then likely he will be ordered to continue to pay all the bills while the divorce is pending, including your attorney’s fees, as long as the court is presented with evidence showing that his wages are enough to support these things. If you have stayed at home with the children, most likely you will be named the “primary conservator.”
However, unless a housewife is going to receive a large amount of property or cash in the final divorce, she will likely have to consider obtaining employment when the divorce is final. Realistically, it is often very difficult, if not impossible in many circumstances, for a wife to continue staying at home with the children after the divorce is final.
• My spouse hired an attorney and they want me to sign a “waiver of service.” What effect will it have if I sign this?
Never sign a waiver of service without first consulting an attorney. The waiver of service may have a phrase that says “I agree that the court may hear this case without further notice to me,” or “I have entered in my appearance in this case for all time.”
The effect of that phrase basically means that you have agreed that your spouse and his/her attorney may proceed on with the case and have it decided any way they want because you have agreed that the judge hear the trial without you. If you aren’t there to defend yourself, your spouse can request whatever he/she wants and it will likely be granted because there is no one there to contest it.
• What is an “agreed divorce?”
No divorce needs to be contentious. And, of course, the more agreeable your divorce is, the less it will cost.
If a couple has discussed divorce and reached agreements concerning division of the property and debts and custody of the children, one party can hire an attorney to draft all the associated documents for divorce, and parties can both sign and agree to the terms and therefore avoid trial and other costs of litigation.
However, if your spouse has hired an attorney and you are being asked to sign the documents, I highly recommend that you seek the advice of an attorney to make sure you are signing and agreeing to what you understood you were getting.
If the divorce is finalized and then you realize that certain provisions are not fair or not what you expected, you likely cannot change it unless fraud was involved.
• What is “Collaborative Divorce”?
Collaborative divorce provides a set of rules different than traditional litigation for conducting a suit for divorce. The parties agree to negotiate all aspects of the divorce, and have no hearings in which a judge or jury renders a decision to resolve a disputed issue.
The parties also agree that if the negotiations fail, they will obtain new attorneys as they pursue the divorce under the rules for traditional litigation. This latter rule presents an obvious risk - that the couple may need to start over with new attorneys and new retainers, having gained little from their collaborative law effort.
Collaborative law procedure implies to some that traditional litigation is always adversarial and agreements are not negotiated, but rather are the result of judges' or juries' decisions.
But that is not true. Most divorces settle without trial, whether in a collaborative procedure or a traditional procedure. Why? Because if settlement is not reached, the judge will order a mediation prior to trial, and at least 90% of divorces settle prior to mediation or during mediation, whether in a collaborative setting or not.
• Can I keep my own 401k?
The division of property can be done by agreement or by the court. If you had your 401k before marriage, the earnings in it acquired before marriage is your separate property. However, if contributions to the account were made during marriage, your spouse will be entitled to an amount equal to have of earnings in it during marriage. Of course, your spouse may simply agree to take that amount in some other form, such as cash or some other asset that belongs to you both.
Since there are penalties for withdrawing sums from your 401k early,you can agree or the court can order that the 401k plan “roll over” a portion of your 401k to have the effect of your spouse having his/her own 401k account. An experienced divorce attorney should always draft that order because it is a somewhat confusing document.
• I own a business. Will my spouse get part of it when we divorce?
If the business was started during the marriage, it is likely community property. If divorce occurs, the business can be sold and assets divided, or one spouse can “buy out” the other spouse by taking a disproportionate amount of some other asset, or the business can continue to run under the same management, and profits continually divided with the other spouse.
There are many complicated factors that have to be considered when determining one’s rights to a business during a divorce. If the business has significant debt or profit, it is very important that an attorney assist you in determining how to handle this type of situation.
• I think my spouse has secret accounts in which money is hidden. How will I know if this is true?
This is not uncommon. Once you have obtained an attorney, you will want to tell your attorney about your concern. Subpoenas can be sent to any bank, requiring that the bank turn over bank statements associated with your spouse’s name/social security number. Additionally, the spouse hiding money may also be required to turn over all of this information during the “discovery” process or sworn inventory process of the divorce.
• Will I get any part of the secret accounts in the divorce?
The courts will likely penalize a person who hides assets. Once the divorce process is started, the courts may order that you give the other spouse all or some of this money to use during the period while the divorce is pending for living expenses, attorney’s fees or other expenses, and will almost certainly order that it be divided, perhaps disproportionately in favor of the deceived partner, upon the entry of the final divorce.
• Who will get to keep the house?
Normally if the house was purchased after marriage, the house will be considered community property.
If both parties are on the loan and one party wishes to keep the house, it is important to get the house refinanced into the party’s name who is keeping the house. For instance, if Wife and Husband’s name is on the loan, and Husband is keeping the house and continuing to pay the mortgage, Wife may fully trust that Husband will pay the loan, but if he doesn’t, it will still affect Wife’s credit.
Additionally, Wife may want to get a loan for her own house and may have difficulty because her credit report will show that she already has a loan. If Wife wants to keep the home and there is equity in the home that Husband is entitled to, Wife could buy Husband’s interest by paying a monthly payment to Husband, or could give Husband his half of equity from another source such as a 401k.
Example: The house has $50,000 equity that should be split equally. Wife has a 401k with $50,000 in it that should be divided equally as well. Wife wants to keep the house rather than sell it and split the equity. She could simply give him all the 401k and she keeps the house. Each received $50,000 of the community property.
If an agreement can’t be made regarding who should keep the house, courts may order that the house be sold and the equity distributed.
• We won’t be able to afford our mortgage payment if we file for divorce and have two households. Is there anything we can do to prevent foreclosure?
It is possible in some circumstances to request the court appoint a “receiver” in your divorce. Many times the receiver will be able to stop the foreclosure process for a period of several months so parties can resolve the issue or attempt to sell the house.
• My spouse put the house, car and bank accounts in his name. Will I be able to get part of them?
It depends on whether they are community property or separate property. If any of these items were bought or acquired during the marriage, they are likely community property and you will have as much right to them as the spouse whose name they are in.
It will be important to have the name changed on any items that you are awarded in the divorce. If any of the above items were brought into the marriage by your spouse, they may be his/her separate property.
Even in that case, if the spouse continues to make payments on them after he/she is married, you may have some interest in them because community funds (either of your incomes) were used to pay off a spouse’s separate property.
• My spouse has a much higher salary than I do. Will I get spousal support?
There are separate standards for a) temporary spousal support during the divorce process and b) spousal support following the divorce.
If you are seeking spousal support after the divorce is final, there are several factors that are considered. Texas is not technically an “alimony” state, but we have relief available in certain circumstances for spouses a) who lack minimum earning capacity, or b) have special needs or disabilities or c) have been the victims of family violence.
The marriage must have been for at least 10 years in order to be eligible for spousal support, unless there is a conviction resulting from family violence.
As an attorney, I have heard clients complain about having to pay spousal support. But it is the fair solution in many cases. If a wife stayed at home with the children and was a housewife, and the father worked for 10 years with the same company, climbing the ladder to a high position in the company, and the two divorce, the wife may have very limited earning ability.
If she had known that her marriage was going to end in divorce, she likely would have finished college or had her own career. but she relied on the marriage continuing and relied on the benefits that she would have received had the marriage continued. If the husband decides that he wants a divorce, what position does that leave the wife in? This is the type of scenario that may call for spousal support.
There are many factors that must be considered when either arguing for spousal support or arguing against it. Before you agree to pay it or agree to forego it, consult a divorce lawyer who can assist you in deciding how to proceed.
• I have done some things in the past that I fear will hurt my case for custody. Is there anything I can do?
Of course it depends on what you did and when you did it. No matter what, it is important to be honest with your attorney.
We are not here to judge you. In divorce, usually at least one party has done some things they wish they hadn't. That means that 50% of our clients have this issue. We are used to hearing it. It is important that we are aware of it because it may come up in the divorce case and we can always deal with it much more effectively if we are prepared for it.
It is clearly best to know about any bad behaviors before a deposition or final trial. Then we can prepare for it. And there is always a way to prepare for it. But we have to know about it first.
• I had an extramarital affair. Will my spouse get custody of the children?
Despite how felevant this is to divorce, the courts do not necessarily regard it as relevant to custody. Its relevance to parenting has been debated, but the courts have generally viewed adultery as unrelated to a particular parent’s ability to parent a child.
Custody is based on which parent would be best suited to be the primary conservator of the children, considering factors such as: current routines, level of responsibility, age of the child and other relevant factors related to the actual parenting of the child.
Adultery is normally an incredibly painful issue in a marriage. Some courts, in fact, may award the innocent spouse a disproportionate amount of property because of it, particularly if some of the community estate has been spent on the spouse's secret lover.
The innocent party's response to the other spouse's adultery can be very relevant to the custody issue. The courts normally like to see each parent encouraging their children's relationship to the other parent. If the innocent party criticizes the guilty parent's behavior to the children, the court can regard that as immature, improper parenting.
Because of the pain of infidelity, it takes a lot of maturity for the innocent parent to refrain from sabotaging the guilty party's relationship with the children. It is almost always a bad idea to talk negatively about the other parent to the children. It hurts the children when they learn that they do not have a great mom and a great dad. While the innocent party may feel better after bashing the guilty party, the children are left confused, sad and insecure. It is best to express anger toward the spouse in talks with friends or counselors.
If you have had an extramarital affair and you are facing a divorce, you will not be judged at our firm. We are professionals and you will be treated with respect. Our concern is for your legal rights and for your children.
• I want to move away from the area after the divorce and take the children. Will the courts allow that?
Most likely not. Many who are getting the primary conservatorship say, “But my entire support system lives in another state. I have no one here. We only moved here because of his job. Why can’t I move back to my home state, since the divorce is his fault?”
All of these may be valid statements, but the bottom line is that although a move might be better for you financially, emotionally and/or practically, the courts believe it is normally best for the children to stay where they have been so that both parents are geographically near the children. And the courts have a duty to first consider the best interests of the children.
It is not absolutely impossible to persuade a judge to allow you to move. Several factors will be considered. And, of course, if the non-primary parent permaently leaves the area, the other will normally have the right to leave, too. But bottom line: most of the time the children will be restricted to living in an area that includes their current county or a county next to it.
• How much child support will I get?
There are several factors that go into calculating child support. First, the gross income of the “obligor” (person who is to pay) is considered. All bonuses, overtime, etc. are considered in totaling the “obligor’s” income. Once gross income is tallied, the Texas Attorney General’s child support charts are used. There are separate charts to use, which are determined by whether the “obligor” is employed or self-employed. The chart aids in determining what the “obligor’s” net income is.
Net income is the number that is used finally, to determine the final number for child support. Your spouse may say that they get less net income than what the chart shows. The chart is used because many times a person’s net income is what they receive after deductions are being made by the employer, which are not considered when computing child support. Examples of ineligible deductions are: costs for uniform laundering, contributions to 401k, contributions made for insurance for the “obligor,” and others. By using the standard tax chart, a person’s net income is easily determined and is the standard in determining child support.
Finally, after determining what the obligor’s net income is, child support is determined by percentage. (1 child-20%, 2 children-25%, 3 children-30%)
However, several other factors can influence the amount to be paid, including other children the obligor has a duty to support, special needs of the child, health insurance premiums for the children, and other factors.
In Texas divorces or custody cases, the income of the “obligee” (person who is to receive child support) is not generally considered in determining the amount of child support. It is important that you don’t miscalculate child support on your own. A few miscalculations can have you paying significantly more than you are required to pay, or have you receiving far less than you should be based on the law. If you need help computing the correct child support amount, make an appointment with an experienced attorney who practices family law.
Child custody attorneys in Dallas.
Pre nup agreements.