Frequently Asked Questions
- Child Support FAQ’s
- Custody and Possession FAQ’s
- Divorce FAQ’s
- Property Division FAQ’s
- Social Security FAQ’s
- Legal Terminology
1. How is child support calculated?
In most cases, child support is calculated using a formula in the Texas Family Code. The payor’s monthly “net resources” (a term defined by statute) is multiplied by a percentage which is determined by the number of children at issue (e.g., the percentage for one child would be 20 percent. This increases by 5 percent for each additional child). The payor is entitled to a reduction if he or she is also responsible for the support of a child in another household.
2. Who carries medical insurance for children and how do out-of-pocket medical expenses of children get paid?
The Texas Family Code requires that the court include medical support in an order regarding child support. The parent paying child support (obligor) will normally be required to carry health insurance. However, if the parent who receives child support (obligee) has health insurance available (and the obligor does not) the court may order the obligee to provide health insurance and order the obligor to pay additional child support to cover the actual cost of health insurance. Additionally, the court shall allocate between the parties, according to their circumstances, the reasonable and necessary health care expenses of the child that are not reimbursed by health insurance.
3. Can my child’s other parent avoid paying child support by filing for bankruptcy?
Child support obligations are not dischargeable in bankruptcy.
Custody and Possession FAQ’s
1. How do the Courts determine custody?
The best interest of the child is always the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
2. Isn’t it true that the Courts favor the female spouse having custody of the children?
By law, courts must consider the qualifications of a spouse or party without regard to their marital status or to the sex of the party or the child in determining whether to appoint either parent or party as sole managing conservator or appoint the parties joint managing conservators. Typically, the primary goal of any court is to maintain the status quo if the evidence indicates that the current scheme of access to the children is working well for the children.
3. What is joint conservatorship?
First, to address an erroneous definition, joint conservatorship does not mean (necessarily) that one parent has the child half of the time and the other has the child the remainder of the time. Although a joint managing conservatorship can consist of an equal split in possession of the child, it more often consists of one parent having the child the majority of the time and the other parent having visitation/possessory rights that are much less than half. Joint managing conservators means that both conservators (parents) share in the major decision making rights, privileges, duties and powers held by the parent pertaining to the child such as the right to establish the primary residence of the child; the right to consent to medical, dental and surgical treatment; the right to receive and give receipt for periodic payments of support for the child; the right to represent the child in legal actions; the right to consent to marriage or enlistment in the armed forces; and the right to make educational decisions, to name a few.
4. Where will the Courts start with regards to conservatorship?
Texas has enacted a presumption that parents should be joint managing conservators. Of course, this presumption is rebuttable. The presumption is based on the notion that it is usually in the child’s best interest to have both parents play a major role in all aspects of the child’s life.
5. Under what circumstances can the joint managing conservatorship presumption be rebutted? How can I avoid joint managing conservatorship and be named sole managing conservator?
The presumption can be rebutted by showing that a joint managing conservatorship arrangement is either not workable between the parents (i.e., you cannot make decisions together regarding the child) or a showing that joint conservatorship would not be in the child’s best interest.
6. At what age can a child sign an affidavit choosing a managing conservator?
Recent changes in Texas Family Law eliminated the option for a child to sign a document, informing the court of his/her choice of which parent he/she wants to live with primarily. The current law provides that upon the proper request by a parent or attorney for a parent, the court is obligated to interview a child who is 12 years of age or older to determine the child’s wishes as to conservatorship and that the Court must consider the child’s desires in conjunction with other evidence relating to what is in the child’s best interest.
7. Can a child testify at a custody trial?
In a nonjury trial, the judge must, if requested, interview a child who is 12 years of age or older in chambers. Additionally, the judge has discretionary authority to interview a child under 12 years of age.
8. How can I get the custody and/or visitation provisions of my divorce decree changed?
The only way to formally change current custody and/or visitation provisions in a Court Order is to file a Petition to Modify with the Court and request that the Court review and revise the prior Orders.
9. I have specific days and times for visitation but my ex refuses to allow me to see our child on those days. What can I do?
Many levels of options are available for relief based on the specific facts of the underlying problem. Most often the remedy is to file with the Court a Motion to Enforce the provisions of the Order and/or a Motion for Contempt asking the Court to hold the disobedient party in contempt. Contempt remedies can range from having the disobedient party held in jail to merely having the Court Order extended periods of possession to the parent who has been denied access to the most extreme circumstance of the Court issuing a change in primary custody decisions.
10. May I stop child support payments if I am not allowed visitation?
No. The payment of child support is not an exchange or condition precedent to your having visitation. The proper procedure would be for you to file a Motion for Enforcement and/or Contempt.
11. I’m not receiving the child support as ordered, may I deny visitation from my ex?
No. A conservator’s right to session/visitation is not conditioned on whether he/she pays child support as ordered. The proper procedure would be for you to file a Motion for Enforcement and/or Contempt.
12. I will have my child for 30 days during the summer — must I still pay child support during that time?
Unless your divorce decree or court order specifically says otherwise, you must continue to pay child support during that 30 day period.
13. Can the Court limit where the children live?
The Texas Family Code provides that when conservatorship is established, the Court must designate the conservator who has the exclusive right to determine the primary residence of the child. Most courts believe that included in that obligation is the additional obligation to either specifically establish the geographic area in which the conservator shall maintain the child’s primary residence, or specify that the conservator may designate the child’s primary residence without regard to geographic location. When they apply, residence restrictions for the children are most often limited to the current county of residence and counties bordering that county, but in many cases the parties to a divorce will establish for themselves residence boundaries appropriate to their lifestyles and circumstances so as to keep both parents in reasonable proximity to the children and their activities so that both parents can remain active participants in their children’s lives.
14. 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, exclusive use of the marital residence, exclusive use of vehicles, alimony, and interim attorneys fees.
15. If I am not married to my child’s other parent, what can I do?
If you are not married to your child’s other parent, you can file a suit to establish parentage. Once parentage is established, possession, child support and visitation are set in a final order, much the same as in a divorce case. Additionally, the courts can order retroactive child support.
16. Does the Court have guidelines as to possession of children?
The Texas Family Code sets out a standard possession order which is presumed to be the minimum amount of time that you could see your children, so long as they are over the age of three. If your child is under the age of three, Texas law requires that the court render an order appropriate under the circumstances for possession of a child of less than three years of age.
17. Where can I get information about the effect of divorce on children?
An excellent resource regarding the effect of divorce on children is Practical Parent Education. Practical Parent Education provides a four-hour seminar regarding the effect of divorce on children (For Kid’s Sake). This seminar was the result of collaboration between Judge Curt B. Henderson, Practical Parent Education, and the Plano Bar Association. Nancy B. Amick was President of the Plano Bar Association when this program was developed and was instrumental in its establishment. Additionally, please see our resource list for books which will give you additional information.
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.
Property Division FAQ’s
1. How is property divided between spouses in a divorce?
The Texas Family Code requires that the court divide the community property of the spouses “in a manner that the court deems just and right.” This means the court is not required to divide the property 50-50 and can consider a variety of factors in deciding what is “just and right.” These factors can include fault in the divorce, disparity in earning power, disparity in amount of separate property, etc.
2. What is the difference between separate and community property?
Generally, a spouse’s separate property is property that was either:
- owned by the spouse before marriage
- acquired by gift or inheritance, or
- certain kinds of recoveries for personal injuries
Community property is all property other than separate property. All property owned by either spouse at the time of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.
3. Can I make my spouse leave the home while we are in the divorce process?
If you request the court to issue temporary orders as part of your divorce proceeding, the court can order that one of the spouses has exclusive use of the marital residence during the divorce proceedings. If each spouse wants the other spouse to move out, the court will have to decide which spouse moves during the pendency of the divorce.
4. Will I lose my interest in our house if I move out before the divorce is completed?
The character of your house is either separate property, community property or mixed. This characterization is set and will not change because one of the spouses moves out. However, moving out before the divorce begins could have an adverse impact if you have custody issues.
5. Can my spouse be awarded property that I had when we married or that I inherited after we married?
No. Property you had when you married or inherited after your marriage is your separate property. The court cannot divest you of your separate property. However, you will have to prove that such property is your separate property by clear and convincing evidence. If you cannot meet your burden of proof, the court may presume it is community property and could thus award some or all of it to your spouse.
6. Am I entitled to any assets that are only in my spouse’s name?
Possibly. The name on the account or asset does not determine whether the property is community or separate. If assets are solely in your spouse’s name, but are community assets, you can potentially be awarded a portion of those assets.
7. Can one spouse be awarded part of a retirement plan in the other spouse’s name?
If a retirement plan is community property, it can be awarded in whole or in part to the spouse whose name is not on the account. The assets awarded to the other spouse can be transferred to the other spouse without tax consequences. A special document called a Qualified Domestic Relations Order would be entered at the same time as the divorce decree.
Social Security FAQ’s
Nancy B. Amick has been representing disabled claimants before the Social Security Administration for over 20 years and Laura Amick Gadness has been representing disabled claims for more than seven years. They understand their client’s frustrations when they are denied disability benefits after having paid into the system for so long. Laura and Nancy also understand how frustrating dealing with the government can be. They make sure each of their clients receives compassionate, diligent and personalized service.
Both Laura and Nancy are sustaining members of the National Organization of Social Security Claimants Representatives (NOSSCR). They hope the following list of Frequently Asked Questions will be helpful to you.
1. How does the Social Security Administration determine whether a Claimant is disabled?
Federal law defines disability as inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. Extensive federal statutes and regulations further set out how the government determines whether or not an individual meets this definition. The test is not met simply because an individual has a medical problem and/or cannot find a job.
2. Who is eligible for Social Security Disability (SSDI)?
Social Security Disability Income (SSDI) is an insurance policy. If you worked at jobs under which you paid Social Security, you paid into the system. In order to be eligible for Social Security Disability, in addition to meeting Social Security’s definition of disability, you must have paid into the system a certain amount of money for each of 20 out of the 40 calendar year quarters immediately preceding the date in which you became disabled. Additionally, a disabled widow or widower (over the age of 50) may be eligible on the work record of the deceased spouse. Minor children and adult disabled children may be eligible for benefits on the work record of a deceased parent.
3. Who is eligible for Supplemental Security Income (SSI)?
Supplemental Security Income (SSI) is a needs based program for disabled adults and disabled children. The disability requirements are the same as SSDI. However, it is not necessary to have paid into the Social Security insurance system. The Social Security Administration will consider your needs, your assets and your resources. If both are below a certain level, you may be eligible to receive SSI if you are disabled.
4. How do I apply for Social Security Disability benefits?
You may apply for Social Security Disability at any local Social Security Administration or by telephone.
5. What should I do if I am turned down?
If your claim is initially denied by the Social Security Administration, you have the right to appeal the denial by requesting a reconsideration. You must do this within 60 days of the date of the initial denial. Unfortunately, most persons who were turned down at the initial level are also turned down at reconsideration. Do not be discouraged. You have the right to appeal again or by requesting a hearing before an administrative law judge. It is important to make every appeal within 60 days of the date on the letter of denial which was sent to you. Additionally, it is critical that you keep the Social Security Administration appraised of your current address while your case is pending.
6. What happens at a hearing?
The hearing is your opportunity to speak directly to the person who is making the decision on your case. Persons at the hearing will include the administrative law judge, his assistant who will record the hearing, you, your lawyer (if you have one) and possibly a vocational expert called by the government or a medical expert called by the government. The hearing will be recorded. You will be asked questions by the administrative law judge and by your attorney, if you have one. You have the right to ask questions of any experts who are called by the Social Security Administration (medical experts or vocational experts).
7. Do I need a lawyer?
You are not required to have a lawyer. However, statistics show that more applicants have a lawyer at the hearing stage than do not.
8. What will a lawyer do for me?
Every individual and his/her case is different. However some of the things a lawyer might do in representing you include the following:
A. Help determine what benefits you may be eligible for and whether you are likely to be considered disabled under Social Security Law.
B. Assist you in completing all necessary forms and paper work.
C. Gather all your medical records from your doctors.
D. Ask your doctors for additional information regarding your limitations and disabilities as needed.
E. Explain the general proceedings which take place at Social Security hearings.
F. Meet with you before your hearing to advise you as to questions and issues that may arise at your hearing.
G. Represent you at your hearing and present evidence on your behalf.
H. Deliver an opening statement on your behalf.
I. Question any experts such as vocational experts or medical experts called to testify.
J. Request that a prior application be reopened and reconsidered, if possible.
9. How is my lawyer paid?
We do not collect any attorney’s fees unless your case is won. If we win, our fees are 25 percent of your back benefits, with a cap which is set by statute, currently $6,000.
The following list provides information about some of the procedures that may be taken in your family law case. Please speak to your attorney if you would like more information. This list is intended to point out some of your major rights. It does not include everything . This list also informs you of some time constraints in family law cases. If you want more information, please ask as early in your case as possible.
Petition. The person who initially files the divorce petition is called a Petitioner and the other party is called the Respondent. The Respondent in an action has the right to file a counter-request seeking relief. If no counter-pleadings are on file, the Petitioner has the right to dismiss his/her cause of action at any time prior to the final order.
Ex Parte Restraining Order. At any time, but most often at the beginning of a law suit, either party can request a restraining order to prohibit certain actions by the other party. Most restraining orders are granted “ex parte” which means that they are granted without the other party having an opportunity to object. An ex parte restraining order expires after 14 days unless it is extended by court order. Most often a restraining order is used to prevent the other party from taking children outside the court’s jurisdiction or to prevent the other party from disposing of community assets or changing the character of community assets. However, a restraining order cannot prevent the other party from spending for his/her ordinary needs, including attorney fees. Enforcement of a restraining order will require a court hearing.
Temporary Orders. At any time, but most often at the beginning of a law suit, either party can request the Court to issue temporary orders. Temporary orders can designate child custody, require a party to pay child support to the other party, designate possession periods of the children, designate which party can use property (including the homestead) while the action is pending and provide for payment of spousal support and bills. Temporary orders can address many other issues. Temporary orders can be modified during the lawsuit. However, the entry of a final order (including an order dismissing the lawsuit) ends the effectiveness of the temporary orders. Furthermore, most rights under temporary orders must be enforced while the temporary orders are in effect or they are lost. Again, if you have any issue which needs to be addressed while your case is pending, discuss the possibility of seeking temporary orders with your attorney.
Jury Trial. In a family law matter, the litigants have the right to a jury trial as to some, but not all, of the issues in the case. For example, a jury’s verdict as to custody is binding while a finding regarding possession periods is only advisory to the judge. Many property issues can be determined by a jury. If at any time during the litigation, you believe you might want a jury trial, discuss this with your attorney immediately. A request for a jury trial must be made in writing and filed with the Court at least thirty days before a scheduled trial date.
Enforcement Request. If a Court orders a party to do something or to refrain from doing something, the judge has the right to enforce the Court’s order. Certain violations of a court order can be enforced by contempt (jail) or by monetary fines. However, if your spouse has violated a court order, your attorney must prepare and file a motion to enforce the violated order, and set the matter for a hearing. Again, discuss any problems with your attorney as early in your litigation as possible.
Discovery. While a lawsuit is pending, each side has the right to acquire information from the other party. The most common means for acquiring such information are as follows::
•1. Inventory. An inventory is a document that lists all property owned by the parties, including separate property. Most courts require each party to file a sworn inventory prior to the final hearing. Even in uncontested cases, it is advisable for each side to prepare and file sworn inventories.
•2. Request for Disclosure. A Request for Disclosure obligates a party to provide basic information regarding the lawsuit.
•3. Interrogatories. Interrogatories are written questions which the other party must answer under oath. The answers are due thirty days after the interrogatories are served on the party or his/her attorney. Sometimes the interrogatories ask for information which does not have to be provided if a proper objection is made. All objections must be made in the response and served on the other party within the thirty day period. If the objection is not timely made, the party can be required to answer the question. If we are serving discovery requests on your opposing party, we will likewise need adequate time to prepare those questions and to have them served on the opposing party well in advance of thirty days before the trial date.
•4. Request for Production and Inspection of Documents and Tangible Things. A party can request the other party to produce documents and other items for inspection and copying. As with interrogatories, a response, including any objections, is due within thirty days.
•5. Deposition. A party to a lawsuit, or a witness, can be required to orally answer questions asked by one of the attorneys in a deposition. At a deposition, both parties and their attorneys are present. The witness is sworn in and then questioned. Normally a court reporter is present to take down the testimony. Afterwards, the court reporter prepares a transcription. Sometimes a videotape is also made. It is possible (although usually not advisable) to forego the expense of a court reporter by making only a video or audio recording. If we take a deposition on your behalf, we will hire a court reporter on your behalf, unless you discuss the other possibilities with us prior to the scheduling of the deposition.
•6. Motions for Mental or Physical Examination. Typically, where custody of minor children is at issue or if the parties make a request for such examination based on a reasonable belief that the other party is impaired emotionally or physically, the Court may order that all or some of the parties submit to a psychological, psychiatric or other mental evaluation a social study or the Court may appoint an Amicus Attorney or an Ad Litem to represent the interests of the child.
Mediation. Mediation is a process intended to help you resolve your case without going to trial. In mediation, the parties and their attorneys meet with a mediator, usually at the mediator’s office. Sometimes mediation begins with everyone in the same room to give all parties the opportunity to express their positions at the outset. At some point in the mediation (sometimes from the very beginning) each party and his/her attorney remain in separate rooms and the mediator alternates his/her time between the rooms to try to help the parties negotiate a settlement. The mediator is a neutral third party who does not impose his/her own opinions on the parties. The mediator relays offers and counter-offers. The mediator tries to keep the litigants focused on the true issues in the case, make suggestions, and point out (in private) any possible weakness in a case. The mediator will not give either party any legal advice, so as to maintain their neutrality. Mediation is an excellent way to settle a case. Using mediation usually (but not always) results in lower attorney’s fees for the litigants than does proceeding directly to trial, and it gives the parties an opportunity to have more control over the outcome of the case.
Amicus Attorney. Sometimes if the parties disagree about the best interests of the child the Court will appoint an attorney to advise the court as to the best interests of a child. That attorney is called an amicus attorney. Typically, the parents are ordered to pay the fees of the amicus attorney. The amicus attorney is independent of the parents and takes an active role in the case.
Social Study. In custody disputes, your attorney may suggest that a social study might benefit the Court in making a custody determination. A social study is a report prepared by a counselor, social worker or psychologist to give the judge (or jury) a neutral, independent evaluation of the parents and children in a child custody situation. It may also be used in a case involving visitation disputes. The preparation of a social study typically requires six to eight weeks to complete and generally costs approximately $2,000 to $5,000 per party. The request for a social study should be made early in the litigation and costs should be considered.
Residency Restriction. In custody disputes, the Court will frequently impose a residency restriction on the children which directly impacts the residency of the primary conservator. If you are seeking to be named the primary conservator you should discuss the implications of this restriction with your attorney.