Frequently Asked Questions
Once the decision to file for divorce has been made, there is a good chance that you may begin to feel overwhelmed by all of the legal and administrative work that will be necessary to end your marriage. That being said, it will be in your best interests to reach out to a lawyer as early on in the legal process as you can.
Until then, you should read through the answers we have provided to some of the most important and frequently asked questions our attorneys hear every day. To speak with a Texas divorce lawyer at The Maynard Law Firm, PLLC, about any of the questions you have, please call our Fort Worth offices at (817) 335-9600 today.
How do I choose the right form of divorce for my situation?
There is a lot that needs to be considered before we can answer this question. Most importantly, we will need to consider your spouse’s feelings about the divorce. If the two of you can come to an agreement about how you want the divorce to work, an uncontested divorce will probably be right for you. If you find that the two of you disagree about most of the primary aspects of the divorce, a contested divorce will probably be right for you. Mediated and collaborative divorces can each be used to resolve minor disputes without going to court. In any event, it will be in your best interests to speak with an attorney who can help you make an informed decision about what will be best for you.
What if my ex-spouse breaks our legal agreement and stops paying child or spousal support?
If your former partner stops paying your spousal or child support, you may need to take legal action against him or her in order to enforce the agreement that the two of you signed. Even if your former husband or wife’s financial circumstances have changed, they must legally modify their support agreement before they can begin paying you any less than they agreed or were ordered to at the time of your divorce.
Will I be able to keep my own things after the divorce?
You will most likely be able to keep any piece of property that you can prove belongs to you alone. This typically includes any property you owned before you got married, along with any gifts of inheritances you acquired during the course of your marriage. While it will be possible for you and your partner to divide all your assets and debts however you want with a voluntary agreement, the courts will approve the final division of property under the strict guidelines of the law. As such, the court cannot take anything away from you that is proven to be your own separate property.
Will I have to keep paying alimony if my ex-spouse gets remarried?
You probably will not have to continue paying alimony if your former spouse gets married again. Since spousal support is only awarded under a fairly narrow set of circumstances to begin with, any change of those circumstances may make continued alimony payments unnecessary. In any event, you should consult with an attorney about modifying your alimony agreement if your former spouse will no longer need your financial support once he or she gets remarried.
Who will get custody of our children?
If you and your spouse are not able to reach an agreement about the custody of your children on your own, the court will make a legally-binding decision in the best interests of your child or children. That being said, the court can potentially award either sole custody or joint custody, each of which will have a specific set of stipulations. For instance, if one parent is awarded sole custody, the other parent will likely have visitation rights. If you and your partner end up holding joint custody, you will both share physical and legal custody of your children. This will probably be the most important and complex aspect of your divorce agreement and you should consult with an attorney about the particulars of your situation to get a better understanding about how your custody agreement may work once everything is said and done.
What if I don’t get custody of my children?
Even if you are not appointed as the sole or joint conservator of your children, it will still be possible for you to be appointed as a possessory conservator, which may allow you to see your children on specific dates and times that are set by the court. Since the state legislature adopted the “Standard Possession Order,” possessory conservators are usually provided with time to see their children three weekends of every month, every Thursday while schools are in, and for half of all annual holidays. However, it is possible to create non-standard possession orders that can be used to accommodate non-typical work schedules or for virtually any reason that would be in a child’s best interests.
Do I need an attorney to file for adoption?
Though you will not necessarily need an attorney to successfully work through the process of adoption, it will certainly be in your best interest to retain experienced legal counsel. Even if you choose to work with an adoption agency—which should help to clarify the process—the truth of the matter is that the adoption of a child can be exceedingly complicated. That being said, an attorney can help you make sure that you have crossed all your t’s and dotted your i’s each and every step of the way. We can help you understand the applicable timetables, file the necessary paperwork, and where you are on the timeline as we work our way toward finalizing the adoption.
What will happen to our debt when we divorce?
In the same way that you and your partner will need to split all of your community assets, the debts that you hold together will also need to be divided between the two of you. Debts that you and your partner accrued during the course of your marriage—for instance, your mortgage, credit card balances, and car loans—will be subtracted from all of the community assets you hold in order to calculate your net community estate. This figure will then eventually be used as a guidepost during the process of dividing your estate. However, it should be noted that debt—like just about every other aspect of a divorce—can be divided however you and your partner want if it is possible to reach a voluntary agreement.
Can I get a divorce if I don’t know the whereabouts of my spouse?
Yes. You will have to try to find your spouse so that he or she can be notified of the divorce. If you are unable to locate your spouse, you may try service by publication. Service by publication is a procedure in which the court permits you to make a public notice of divorce in the newspaper. After such steps are taken, you may then get divorced and given custody of your children. Some delays on full resolution may occur until court papers are served to your spouse, however.
What does uncontested divorce mean?
If a petition for divorce is not opposed by either spouse, and each spouse agrees on each issue in the settlement, then the divorce is considered uncontested. Issues discussed in a settlement typically include the division of property, alimony, and custody of children.
What does no-fault divorce mean?
No-fault divorce simply means that your spouse was not at fault for your divorce, but you do not want to be married to them anymore. Prior to the introduction of no-fault divorces, one had to prove their spouse was guilty of abuse, adultery, or a crime that deserved jail time for a divorce to be justified. This made getting a divorce a lengthy and expensive process. A no-fault divorce can avoid those challenges.
What happens if my spouse refuses to sign the divorce decree?
Often, a divorce is only initiated by one party and thus the process can become very complicated if the other spouse does not desire to end the marriage. If your spouse refuses to sign the divorce papers, then the finalization of the divorce can still occur but becomes more difficult. There is a 60-day waiting period for the refusing party to sign the decree, but if they fail to do so, the judge will proceed to determine major decisions for them. The divorce is then considered a contested divorce, where both parties will attend a hearing.
How does mediation work?
In the event that a spouse refuses to sign a divorce decree, then re-negotiation is required through mediation. Mediation is a form of resolution where both spouses discuss the terms of their divorce in front of a neutral third party. Sometimes a court will order the parties to mediate simply if they cannot agree on how to proceed with the divorce, so a mediation meeting helps them resolve their differences in order to prepare for court.
Do I have to make a new will after the divorce?
You are not required by law to renew your will following a divorce, but usually it is in your best interest to do so. When your divorce is finalized, your ex-spouse is excluded from your will immediately; therefore it would be wise for you to update the division of your assets. In the case that you still desire that your ex-spouse be a beneficiary, then you must still create a new will, which oftentimes requires work for both parties. Therefore, while your previous spouse won’t receive anything from your will in Texas, it is still important to keep it up to date to avoid serious repercussions.
How long does it take to finalize our divorce?
The average waiting time for a divorced couple can be as little as under a month to as great as sixth months after their petition is filed. If you and your spouse have disagreements about child custody or any other major complications, then it may take longer to be officially divorced. Taking multiple issues into court will prolong your divorce finalization, but it usually takes no longer than a year.
What is the difference between fault and no-fault divorce?
In Texas, you are allowed to file for a fault or no-fault divorce depending on your basis for separation. In a fault divorce, one spouse can accuse the other of harmful misconduct that caused the marriage to end. Some claims that are often used in fault divorce cases include the spouse committing adultery, abandonment, substance abuse, or cruel actions. A no-fault based divorce is for couples who want to divorce under irreconcilable differences, or, in other words, that they simply don’t get along.
Does Texas law allow permanent alimony?
A Texas court will order permanent alimony if the spouse requesting it meets certain requirements. A court order for alimony in Texas is called “spousal maintenance” and is assumed unnecessary except in extreme cases like alongside claims of domestic violence. Otherwise, the spouse claiming a need for permanent alimony must prove to the court their legitimacy for extra income. The court will consider the following in each spouse when determining a need for spousal maintenance, financial status, education and employment, the length of the marriage, any subsequent child support.
After the divorce, can I get medical insurance benefits from my former spouse’s employer?
You may be able to keep your former spouse’s medical insurance benefits under The Consolidated Omnibus Budget Reconciliation Act of 1985. These COBRA benefits allow former spouses of employees who work for an employer with at least 20 employees to receive “continuation coverage” for the first three years after the end of a marriage. To obtain these benefits, you would have to directly contact your former spouse’s employer and request the appropriate forms. Once you have the forms, you will have 60 days from the date the marriage was terminated to fill them out and submit them. If you exceed the deadline, you forgo the possibility of continued benefits.
When can my child decide with whom they wish to live?
At age 12, your child can address his or her primary living preferences in a document called a “Choice of Managing Conservator.” Your child can sign the document that discusses his or her wishes to the court and a family attorney can file a Motion to Modify. The motion must be filed in conjunction with the document to legally change the previous arrangement. Although a Choice of Managing Conservator document is very influential in court, the judge ultimately makes the decision about what is in the child’s best interest. Therefore, the court does consider a child’s wishes, but their decision may not always align with the child’s preferences.
Do grandparents have child custody rights?
A grandparent may file a suit for the custody of a child if they believe it is in the child’s best interest. Under the Texas Family Code, grandparent custody is allowed if the parents consent or there is a serious concern about the child’s welfare. A court can also allow a grandparent visitation if it is best for the child and one of the following is true:
- The parents are divorced
- A parent is deceased
- A parent neglects or abuses the child
- A parent is incarcerated or incompetent
- The court has terminated the parent-child relationship
- The child has lived with the grandparent at least six months
How can we ensure a fair division of assets during my divorce?
Assets fall under two categories: community and separate property. Community property is all the property that a couple acquires after marriage and the spouses usually equally divide the property. Separate property describes the assets that a spouse held prior to marriage. The original spouse who owned the property can keep it privately. In many instances, a court judge will decide how to divide assets most equitably if the spouses are unable to come to a consensus.
What happens if my spouse refuses my visitation rights?
If the custodial parent consistently denies visitation rights, the visiting parent has many options to enforce their rights. The visiting parent can have his or her attorney draft a letter of intent to the spouse reminding them that it is their legal obligation to allow visitation. If the warning is not enough, it is best to file a legal petition with the court to enforce the visitation rights or ask for a change in custody.
How can we enforce spousal support or alimony payments?
Many spouses depend on their spousal support or alimony payments. If the support goes unpaid, life can become extremely complicated. There are many ways a divorce attorney can help enforce spousal support payments. For example, an attorney can issue a withholding order. In this case, the spouse’s employer must withhold portions of their pay to contribute to the spousal support payments. If this approach does not work, an attorney will file a court petition to have a judge enforce the payments.
What are the benefits of choosing a contested divorce?
Contested divorces are difficult for everyone involved, especially families with children. Contested divorces should be an option only when the irreconcilable differences between spouses make communication impossible. While they typically cost more than uncontested divorces, contested divorces can save spouses from infuriating arguments and prolonged legal battles. During these divorces, a judge will hear testimonies from both spouses and then make binding decisions about their divorce.