Frequently Asked Questions - Divorce
1. How long must I reside in Texas to get a divorce here? Before filing, one spouse must live in Texas for at least six months and in the county where the divorce will be filed for at least 90 days. Time spent by a Texas resident outside of Texas while in the military, satisfies the residency requirement.
2. How long will it take to finalize my divorce? The Petition for a divorce, the first item filed with the court, must be on file for a minimum of 60 days before a divorce can be finalized. In a simple, uncontested divorce, where the parties are in agreement, the divorce can be finalized as soon as the 60 day wait period expires. However, if there are disputes, the process can take much longer.
3. Can I seek an annulment instead of a divorce? Possibly. An annulment would declare the marriage void, as if it never took place. An annulment may be granted if at the time of the marriage one party was: (a) underage; (b) under the influence of alcohol or drugs; (c) impotent; (d) mentally incompetent; (e) forced to marry; (f) was misled about a prior divorce; (g) previously married; (h) married to a relative as designated by Texas law.
4. Can my spouse and I use the same attorney if we are in agreement on the terms of the divorce? No. An attorney cannot represent both sides in a divorce. While it is in each party’s interest to obtain an attorney, there is no requirement that each part have an attorney.
5. Does Texas have a legal separation? No, you cannot file for separation in Texas, only a divorce. Temporary orders can be entered once a divorce has been filed. The temporary orders can determine who will reside in the marital residence during the pendency of the divorce, who will have temporary custody of the children, what the visitation schedule will be, how much child support and/or spousal support will be paid.
6. What are restraining orders? They are generally put in place to keep the parties from harassing, threatening and/or causing physical harm to the other party, to keep the parties from discussing the case with the children, keep the parties from hiding or negligently spending financial accounts. It is basically meant to maintain the status quo of the parties until the matter can be heard by the Court or the parties can reach alternative agreements.
7. What are protective orders? They are issued if the Court finds that family violence has occurred and is likely to occur in the future.
8. Is there alimony in Texas? Yes. It can be temporary spousal support, court-ordered maintenance in a divorce decree, or agreed by the parties and termed “contractual alimony”. To be eligible one of two requirements must first be met, the party from whom it is sought must have, within a set time frame, been convicted of a crime that constitutes family violence, or the parties must have been married for at least ten years prior to filing for divorce. If the length of time of the marriage is the deciding factor, then the party seeking maintenance must lack sufficient property to provide for minimum needs. There are numerous other factors that the Court must consider when deciding whether or not to award maintenance.
9. Is mediation required? In most cases, you should expect that mediation will be required if the parties cannot reach agreement prior to.
10. What about common-law marriages? There are two recognized informal marriages – (1) a man and woman sign and register an official document of the marriage at the county clerk’s office; (2) a man and woman agree to be married, live together in Texas as husband and wife, and represent to others that they are married. If an official document is registered, the parties must seek a divorce the same as formal marriages. However, a strictly common-law marriage of residing together does not necessarily require a formal divorce. If the parties merely separate and live separately for two years, they may not need to file, it would depend upon their specific circumstances.
Frequently Asked Questions – Custody/Visitation
11. What are protective orders? They are issued if the Court finds that family violence has occurred and is likely to occur in the future.
12. Is mediation required? In most cases, you should expect that mediation will be required if the parties cannot reach agreement prior to.
13. Does joint managing conservatorship mean that the children live with each parent equally? No, joint managing conservatorship awards rights and responsibiities with respect to the child(ren). Texas law favors the granting of joint managing conservatorship. Generally one party is granted primary possession of the child(ren) and the other is awarded visitation. Each case is unique and the parties can reach alternative agreements.
14. Can a child choose whom the want to live with? A child 12 years of age or older may sign a statement naming the person whom the child prefers to reside with. This is filed with the Court, and the Court will consider it, along with other information, when making its decision.
15. When do I need a custody order? If you are separated but not filing for divorce, when you are divorcing, or when a paternity suit is filed (when the parties are not married but a child is born).
16. What is a social study? A court may order a social study if the parties cannot reach agreement regarding custody and visitation on their own. An independent social worker is appointed to meet with the parties and children. They gather a multitude of information and make a recommendation based upon their opinion regarding the best interest of the child(ren).
Frequently Asked Questions – Child Support
17. How is child support calculated? As a general rule, the party that is awarded custody of the child(ren) can expect to receive 20% of the non-custodial parent’s net income for one child, 25% for two children, 30% for three children, 35% for four children, 40% for 5 children, and not less than 40% for six or more children. Generally the non-custodial parent is required to provide health insurance for the children, or if the custodial parent is providing health insurance, then they must reimburse the custodial parent this cost.
18. What is included in income for child support calculation? 100% of all wage and salary income (including commissions, overtime pay, tips and bonuses); interest, dividends and royalty income; self-employment income; net rental income; and all other income received (such as pensions, trust income, social security benefits, unemployment benefits)
19. Can child support be modified automatically? No. However, if the party receiving support is aware that the paying party is making a greater income, you may be entitled to an increase. Conversely, if the paying party has lesser income they may be entitled to seek a decrease. There are other factors that are considered in modifying child support. There is no means for setting the child support to automatically modify based upon income.
20. If child support is not paid, what can be done? You may entitled to file a Motion for Enforcement of Child Support. If the Court finds that the party has failed to pay child support under an enforceable order and the party had the ability to pay, the Court can hold them in contempt of court, commit him/her to jail for a period of time, order them to pay a fine, order payment of the back-owed support and order them to pay your attorney’s fees and court costs.
Frequently Asked Questions – Modification
1. What can be done if the party paying child support is making substantially more or less than when child support was set? A modification petition can be filed with the Court to request a change to the ordered child support amount. It can be made more or less depending on the circumstances.
2. What if the child’s circumstances change, such that the cost to support them increases substantially? A modification petition can be filed with the Court to request an increase in child support. Since the circumstances can vary for many reasons, and some of these would not entitle the receiving party to an increase in child support, it is best to seek an attorney to guide you in this process.
3. What if the child wishes to live with the other party? Depending on the age of the child, the circumstances of both parties, and the child’s currently living conditions (including school and home life), you may be entitled to a modification of the custody agreement. A petition to modify would need to be filed with the Court to request a change.
Frequently Asked Questions – Property Division
21. Does community property mean that everything is divided equally? No. It does mean that if the parties do not agree, the Court will make a just and right division of the assets and debts of the parties. Many issues are considered when making this decision, including, but not limited to, fault in break up of the marriage, earning capacity of spouses, health of spouses, age of spouses.
22. Is there separate property in Texas or is all property community? Yes, Texas does recognize separate property. There are many factors that are considered. If, for instance, one party owns a home prior to marriage, then the home would be considered separate property. This does not mean that the other spouse has no interest in the property, as they may if they have spent time or money on the property. Also gifts or inheritances are generally considered separate property. Separate property issues are complex and require skilled training in order to be accurately addressed.
Frequently Asked Questions – QDROs
1. What is a QDRO? It is a Qualified Domestic Relations Order. It is used when money is moved from one party’s retirement account into another’s party’s retirement account. It is generally used in 401K’s and pensions.
2. Is a QDRO necessary? If property in a retirement account is being divided, generally yes. This ensures that the property is placed in an accessible account for the party to whom it is awarded.
Frequently Asked Questions – Enforcement Visitation
23. If my ex-spouse refuses to allow me visitation, what can be done? You may be entitled to file a Motion for Enforcement of Visitation. If the Court finds an enforceable Order of visitation, and that your ex-spouse has failed to comply with that Order, the Court can hold them in contempt of Court, commit him/her to jail for a period of time, order them to pay a fine, grant additional visitation, and order them to pay your attorney’s fees and court costs.
Frequently Asked Questions – Enforcement child support
24. If child support is not paid, what can be done? You may entitled to file a Motion for Enforcement of Child Support. If the Court finds that the party has failed to pay child support under an enforceable order and the party had the ability to pay, the Court can hold them in contempt of court, commit him/her to jail for a period of time, order them to pay a fine, order payment of the back-owed support and order them to pay your attorney’s fees and court costs.
Frequently Asked Questions – Paternity
1. What if a child is born out-of-wedlock and I am seeking child support? You are entitled to file a petition with the Court that establishes paternity and establishes the rights and duties of the parties. A DNA test may be ordered to determine paternity.
2. What if a child is born out-of-wedlock and I am seeking visitation or custody of the child? You are entitled to file a petition with the court to establish paternity and establish the rights and duties of the parties. A DNA test may be ordered to determine paternity.
SEE also custody/visitation.
Frequently Asked Questions – Wills
1. Where should I store my original signed will? You should consider a safe and secure location for storage. Some counties, including Collin County, allow original signed wills to be filed and stored at the Courthouse for a nominal fee. Do not store your will in a bank safe deposit box that the Executor does not have access to. While it may be safe, it creates potential problems in gaining access after your death. If you store it in a safe in your home, it may not be safe. Theives often take safes in their entirety, assuming they contain money and jewelry. However, if the safe is connected to the foundation of your home than it would not be stolen. Consider storing your will in a water-tight bag to ensure that it does not get water damaged.
2. What if a will is stored in a bank safe deposit box? If another person has access as a joint holder of the box, then they can gain access and get the will. If there is no joint holder, Texas law allows a spouse, child, grandchild or Executor to gain access with a bank employee. If a will is found, the bank will turn it over to the Court. You may also get the Court to order an examination of the box, and order any will found be sent to the Court.
3. Who should get copies of my will? This is an individual preference. Some people want to share their will with their children, Exectors, or trustees, while others view them as private and confidential.
4. What if I want to make a minor change to my will? You can make an amendment, called a “codicil”, by making the change completely in your own handwriting. If the change is important or significant, you should hire an attorney to ensure it is prepared correctly.
5. What is the difference between a Medical Power of Attorney and a Directive to Physicians? A Medical Power of Attorney allows you to appoint an agent to make medical treatment decisions for you in accordance with your wishes, should you be unable to do so yourself. While a Directive to Physicians, addresses the kind of treatment you would like to receive if you faced a terminal or irreversible medical condition. The main difference is the Directive to Physicians allows you to express your wishes and the Medical Power of Attorney appoints an individual to make the decision for you.
6. Can the person appointed in my Medical Power of Attorney make decisions that conflict with those I’ve requested in a Directive to Physicians? Texas law states that your attending physician and the agent you have named to make medical decisions act in accordance with your directions. Presumable this means that if you are in a terminal or irreversiable medical condition, then the Directive to Physician should be honored. However, it is a good idea to request in the Medical Power of Attorney that the agent comply with your Directive to Physician.
Frequently Asked Questions – Probate
1. Which assets are handled outside of probate? There are a multitude of items that may pass outside of your will, including life insurance, retirement plans, individual retirement accounts and annuities. Generally, if the asset allows for you to name a beneficiary, it may pass outside of the will. However, should you fail to name a beneficiary, all named beneficiaries have predeceased you, or if you name your “estate” as the beneficiary, then the assets will pass under your will.
Some bank and brokerage accounts will pass outside your will. Those that are payable-on-death accounts and those with joint tenants with rights of survivorship will pass according to the account terms. Not all joint accounts pass outside of the will, if the account is joint as tenants in common, then the portion owned by the descendant passes under the will. Trusts are also established to pass outside the will.
2. Must a will be probated if the estate if less than $1,000,000? There is never a requirement to probate a will based upon the value. Wills need to be probated to ensure that property that is not otherwise transferred, is transferred. Regardless of how property is transferred, if an estate reaches a certain level (consult a tax consultant to ensure that you are aware of the amount in any given year), than a federal estate tax return must be filed. The level has previously been set to increase annually but changes to the tax code can and probably will be made.
The probate process is primarily meant to change title from the deceased to the party inheriting the property. Some assets, like real estate and bank accounts held solely in the deceased name, require probate.
3. What do I do if I am named executor/executrix in someone’s will when they pass? There are some steps that must be taken, while others depend on what type of assets are in the estate and the size of the estate.
a. First you must find the will, the original will. It is a good idea to talk with the individual before their death so that you are aware of the location of the original.
b. Most of the time, it is necessary to hire a lawyer. Some smaller county judges will allow parties to represent themselves, but you may need assistance preparing the necessary forms.
c. The first document filed is an application for probate. The original will is filed with the Court along with the application and the filing fee.
d. After a mandatory 10 day waiting period, a probate hearing will be held. It often takes more than 10 days to get the hearing due to Court schedules. These can vary from a formal setting in the courtroom with other individuals with cases in the courtroom to less formal settings in the Judge’s chambers or at a table. There are routine questions that you are ask a this time, and generally the Judge will sign the order admitting the will to probate. After the hearing, you will need to sign an oath stating you will fulfill your duties as an independent executor/executrix of the estate.
e. After this hearing you will be able to get “Letters Testamentary” ordered from the county clerk. These will authorize you to close bank accounts and collect and claim other estate assets.
f. Within 30 days of receiving the “letters testamentary”, you must send notice to creditors. Proof of this will be filed with the Court. This is completed to ensure that creditors can file claims to recover money that they are owed.
g. Within 90 days of qualifying as executor/executrix, you must file an Inventory with the Court. You do not have to list items that pass directly to beneficiaries outside the will. For instance, life insurance, retirement plans/accounts, and other such properties are not required to be listed. The Judge will sign an Order approving the inventory after it is filed.
h. Estates with significant value (seek counselor to determine the actual value as it varies depending on the current tax code), must file a federal estate tax return and a Texas inheritance tax return within 9 months of death. You may also be required to file income tax returns for the estate.
i. It is assumed that the will was properly executed, witness and notarized properly, and that it contained all of the right language. Some wills may be contested or the will may have been written in another state and not contain necessary information, thereby complicating the probate process.
4. What if I have a will drafting in another state, and then move to Texas? It is best to prepare a new Texas will. Many states have different language that will complicate it’s probate in Texas. Some states have you name personal representatives and not independent executors, as is done in Texas. An independent executor means that they are not court supervised. While the executor can request this even if not so named in the will, there is not guarantee that the request will be granted. Also, Texas wills contain what is called a “self-proving affidavit” which is signed at the same time as the will. Other states either do not have these or their language signficantly varies from that used in Texas, and may or may not be recognized.
