Learn the Basics of Divorce Law and Procedure

Frequently Asked Questions
  • Q:What is an uncontested divorce?

    A:Sometimes, a married couple can agree on the terms of divorce and division of marital property, and even agree on child support and visitation. Typically, the husband or wife hires an attorney and the attorney prepares the necessary documents to file with the court. After 60 days, the attorney and client appear before the judge. The attorney will then ask the client a short list of questions to verify the property agreement and child support and visitation agreements contained in the divorce decree. Texas is a no-fault state where a married person may obtain a divorce without proving his or her spouse is at fault. However, possible fault grounds are cruel treatment, adultery, conviction of a felony, abandonment, living apart for at least three years, and confinement in a mental hospital for at least three years. A disproportionate property settlement may be obtained in some cases when fault is proven.

  • Q:What are my property rights in a divorce?

    A:Texas operates under a community property system, where property acquired during the marriage is presumed to be community property. Community property means both spouses have an undivided one-half interest in all the property, including income, acquired during the marriage. Property owned before marriage and acquired during the marriage by gift, devise, or descent is a spouse’s separate property. Separate property gives the owner exclusive rights of management, is not subject divestiture at time of divorce, and is solely under the testamentary power of the owner.

  • Q:How does the court divide marital property?

    A:Texas courts are mandated to divide community property in a manner that the judge deems just and right. The court cannot divest or divide a spouse’s separate property. As many factors must be considered when a just and right division of the community property is made, the technique for dividing the marital assets can be very complicated. Issues regarding the disposition of the homestead, division of retirement benefits, and payment of attorney’s fees further compound the problem.

  • Q:Who will be responsible for the marital liabilities?

    A:It is the intent of Texas law that one spouse is not personally liable for the debts of the other spouse, except when the other spouse was acting as an agent for the first spouse or incurring debt for necessities. The marriage relationship alone does not create a basis for personal liability. Each spouse’s solely managed community property is liable for that spouse’s own obligations, but it is not liable for the other spouse’s contractual liabilities. Of course, both spouses may sign a contract that would make them liable and subject all marital assets to liability. When divorcing couples cannot agree on the division of the assets and liabilities, the family court is charged with the duty to make a just and right division of the marital assets and liabilities. However, the family court cannot modify the contractual obligations between either of the spouses as to the creditor.

  • Q:How can I enforce a property settlement?

    A:By filing a lawsuit in family court to enforce its original order.

  • Q:Will the court award me attorney’s fees for an enforcement lawsuit?

    A:The court may award reasonable attorney’s fees as costs to be paid directly to the attorney, who may enforce the order for fees in the attorney’s own name by any means available for the enforcement of a judgment for debt.

  • Q:Who gets custody in Texas?

    A:If the parties cannot agree on the possession of and access to the children, the family court will decide based upon the best interest of the child. This may include such factors as the child’s wishes, the emotional and physical needs of the child, any danger to the child, the ability of individuals seeking custody to care for the child, the stability of the home environment, and more.

  • Q:How is child support calculated?

    A:In Texas, child support is calculated based on the non-custodial parent’s net resources. Net resources include all wages, salary, and other compensation plus all other income received, less social security taxes, federal income tax, state income tax, union dues, and health insurance coverage for the child. Once the net resources are determined, the court bases the amount to be paid depending on the number of children involved. For example, if the obligor has one child, the child support is 20% of the obligor’s net resources; for two children, 25%; for three children, 30%; for four children, 35%; for five children, 40%; and for 6 or more children, not less than 40%. The above percentages may be reduced if the obligor provides support for a child in more than one household.

  • Q:How do I enforce possession and access to my child or child support?

    A:By filing a lawsuit in family court. A family court may enforce an order for conservatorship, support, visitation, or other provisions of a final order.

  • Q:Are attorney’s fees and court costs recoverable in an enforcement action?

    A:If the family court finds a person has failed to comply with the terms of an order for possession and access to a child and/or to make child support payments, the court will award reasonable attorney’s fees and court costs.

  • Q:How do I prove that someone is the father of my child?

    A:A man is presumed to be the father if he is married to the mother and a child is born during the marriage. If the husband and wife become divorced, the former husband is presumed to be the father if the child was born no later than 301 days after the date of divorce. If the man married the mother of the child after the child was born and he voluntarily claimed paternity and filed an unchallenged acknowledgment of paternity with the bureau of vital statistics, or he voluntarily signed the child’s birth certificate, he is presumed to be the father of the child. If the man lived with the child for the first two years of the child’s life and represented to others that the child was his, he is presumed to the father of the child. A court must order genetic testing if requested by a party to a paternity suit. If an alleged father cannot be located, the court may order genetic testing of certain relatives, if warranted.

  • Q:Can I recover attorney’s fees and court costs if I prove the identity of my child’s father?

    A:Yes, you may be able to recover money spent on legal counsel and court fees.

  • Q:What is a stepparent adoption?

    A:A stepparent adoption occurs when the spouse of a biological parent seeks to become the legal parent of a child.

  • Q:What is an adult adoption?

    A:An adult adoption occurs when one adult adopts another adult, and this is supported by both parties. An adult adoption results in a legal parent-child relationship.

  • Q:What is the difference between a premarital agreement and a post-marital agreement?

    A:A premarital agreement is a contract between prospective spouses made prior to and in contemplation of marriage. A post-marital agreement is a contract between spouses made during the marriage. Such agreements serve two main purposes. First, they provide a means whereby existing community property may be converted into the separate property of the spouses, thereby enabling each spouse to manage, control, and dispose of his or her property as he or she chooses. Further, such an agreement may serve to isolate the separate property assets of one spouse from liability for the other spouse’s debts.

  • Q:Are marital agreements enforceable?

    A:Yes, so long as the party against whom enforcement is requested entered the agreement voluntarily, the agreement was not unconscionable when it was signed, and before the execution of the agreement, that party was provided a fair and reasonable disclosure of the property and/or financial obligations of the other party.


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