1. Should I see a lawyer if I am not certain that I want a divorce?
We recommend that you obtain information about the divorce process even if you are not certain as to whether you will be divorcing. Facing difficult times armed with the knowledge of the divorce process and the choices available to you can be comforting and reassuring. Also, litigation is often complex and harrowing. Guidance before you initiate legal proceedings should help you to establish some goals for your outcome and a plan for how you can best achieve your goals.
2. How long do you have to live in the State of Texas to file for divorce?
The Texas Family Code requires that you reside in the State of Texas for the prior six months and be a resident of the county in which you file for divorce for at least 90 days.
3. How long does it take to get a divorce?
The Texas Family Code provides that a divorce must be on file with the court for a minimum of sixty days before the divorce can be finalized. The actual duration of your divorce is determined by many additional factors, such as the Court’s calendar, attorney’s calendars and your personal calendar. A divorce cannot be finalized until the parties have reached an agreement on all issues or the parties have had a final trial of the issues.
If the spouses have reached an agreement on all of the relevant issues a divorce may be obtained as soon as the 61st day after the divorce petition was filed. If an agreement is not reached and the case must be tried, the length of time is primarily dependent on the court’s docket. In Collin County, our experience has been that most divorce cases are set for trial within four to twelve months after the divorce petition is filed.
4. Do I need a legal separation from my spouse?
While some states recognize a legal status known as “legal separation”, Texas does not. Under the Texas Family Code spouses are married until the Court grants a divorce.
5. Where can I file for divorce?
You can file for divorce in a county in which either you or your spouse have lived for at least 90 days, as long as that same person has lived in Texas for at least six months.
6. What are Temporary Orders?
Temporary orders are orders issued by a court, after either a hearing or an agreement made by the parties. Temporary Orders are intended to provide the parties with some structure regarding the possession and exchange of children, child support and the expenditure of the parties’ marital funds until the divorce is final. Practitioners sometimes refer to them as “band-aid” orders. Temporary orders commonly address issues such as child support, custody and visitation of the children, who shall have exclusive use of the marital residence and exclusive use of vehicles, as well as alimony, and interim attorneys fees.
7. If my spouse and I have agreed to all the relevant terms of our settlement, what is the general procedure for obtaining and finalizing the divorce?
It is common for spouses to believe that they have an agreement, when they actually have not addressed all the necessary terms, such as child custody or support, or property division. However, assuming all required terms are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. The attorney for the Petitioner (the filing spouse) files the divorce petition. The other spouse can be brought into the lawsuit by executing a Waiver of Service, which notifies the Court that the spouse signing the waiver knows about the divorce and agrees to let the divorce go forward so long as they have signed off on the final decree of divorce. The Petitioner’s attorney then drafts an Agreed Final Decree of Divorce and any other necessary documents that are reviewed and signed by the other spouse. The other spouse is free to hire or consult with an attorney of his or her own. After the necessary papers are signed by the parties and attorneys, the Petitioner and his/her attorney then go to court for a hearing to have the court enter the Decree and other documents.
If the other spouse will not execute a waiver of service, the case becomes contested. The other spouse can be brought into the lawsuit by service of citation by a process server.
8. Do I have to show fault to get a divorce?
Texas is a no-fault divorce state. “No-fault” means that it is unnecessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation. 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, or how custody is decided.
9. How long do you have to wait to finish a divorce after you file?
The Texas Family Code provides that a divorce must be on file with the court for a minimum of sixty days before the divorce can be finalized. The actual duration of your divorce is determined by many additional factors, such as the Court’s calendar, attorney’s calendars and your personal calendar.A divorce cannot be finalized until the parties have reached an agreement on all issues or the parties have had a final trial of the issues.
10. Can my spouse and I use the same lawyer?
A divorce proceeding is a lawsuit. When two parties are involved a lawsuit they become legal adversaries. While you can engage one lawyer to file your divorce and draft divorce documents, that lawyer cannot give both of you legal advice. Typically if there is only one lawyer involved, he/she represents the Petitioner and is bound to represent only the interests of the Petitioner.
11. What is a common-law marriage?
The State of Texas recognizes informal marriages. The Texas Family Code states that in a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed in the form provided by the Family Code and properly filed with the county clerk; or (2) the marriage may be proved by evidence that the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and represented to others that they were married. A suit to establish an informal marriage should be filed within two years of the last date on which two parties lived together. Otherwise,there is a rebuttable presumption that the parties did not enter into an agreement to be married.
12. What is an uncontested or friendly divorce?
An uncontested divorce is one in which both parties have amicably agreed on every detail of their divorce, the best interests of their children and the complete division of their community estate. The primary task for the attorneys in the case is to file the divorce and draft appropriate documents, including the Final Decree, to memorialize the terms on which the parties have agreed. All parties and children will benefit from maintaining a cordial, respectful working relationship between themselves. A friendly divorce will minimize the hostility and damage to all family members, but requires that the parties reach agreement on all details related to the divorce including child support, possession, access and residence of children an division of accounts and property included in the community estate