Family Law FAQ (Frequently Asked Questions)
A divorce or child custody battle can be emotional and complicated. Getting answers to your questions can help you get moving in the right direction. Feel free to give us a call at our office. We would be happy to answer any questions you have. However, to get you started we have included this Family Law FAQ to answer several common questions.
At what point should I talk to an attorney about my impending divorce or custody situation?
Divorce is often different from other legal problems. A person served with a lawsuit is aware that they need to act quickly to defend themeselves. An individual charged with a crime is well aware that their court date is impending and will need counsel. However, many people sit on the decision on whether to file for divorce, hoping that things will get better or events will intervene that will prevent the breakup.
We are not proponents of divorce. Surveys show that it is usually the most painful and stressful time in people’s lives. If at all possible, we suggest mending a difficult marriage. However, some things are inevitable. We advise that from the first moment that you seriously consider getting a divorce, you talk to an attorney. You need to know what to expect. You need to know what you can do to make a potential divorce as stress-free and inexpensive as possible. As well, you need to understand the financial realities of divorce. You can begin gathering financial information and can take other steps to help ensure it goes swiftly and smoothly.
How much will it cost to hire a lawyer?
Not as much as you may fear! Many people wait on a divorce or modification action because they are concerned that they will not be able to afford the attorneys fees. This is understandable considering the horror stories that are told about divorce. However, most divorce actions can be resolved without litigation. Many cases can be handled without discovery. What drives up the cost of a divorce is attorney time. This becomes expensive when litigation is involved. Lawyer time preparing for trial and at that trial can get extensive, and therefore expensive. Fortunately, this is the exception rather than the rule. Your best course of action is to come talk to us and explain your situation. We don’t charge for consultation. We will give you a very good idea about what your lawsuit will cost.
How much does it cost to talk to a lawyer about my divorce?
Some lawyers charge a minor consultation fee. At Chernoff Law we never charge for an initial consultation, irrespective of whether we are hired.
What are the issues I will need to resolve in my divorce?
A divorce is the separation of a partnership. As a married couple, the two of you obtained assets and incurred debts. These debts and division of property must be split in an equitable way. If children were born during marriage, then serious issues regarding child custody and child support must be resolved. If the parties in a long term marriage have a large disparity in income, then issues of spousal support may need to be addressed. Almost all of these issues will need to be handled in the early stages of a divorce through Temporary Orders.
What is an uncontested divorce?
An uncontested divorce is generally the fastest and least expensive form of divorce. If spouses are able to agree on all issues related to their divorce, they can avoid the time and expense associated with a contested divorce in court and instead work out their own agreement regarding custody, support and property.
If spouses cannot agree on one or more issues related to their divorce, they may need to turn to the courts for a resolution. Ultimately, many contested divorces are resolved at mediation or negotiation between lawyers. However, if agreement cannot be reached, the case will need to be tried to the Court or a Jury. The fact finder will reveiw the evidence presented by counsel on both sides and make decisions regarding child custody, spousal maintenance, child support and the division of property. Both spouses will need to comply with the final verdict.
Can I modify a court order related to my divorce, such as a custody or spousal maintenance order?
If there is a significant change in circumstances (job loss, remarriage, demotion, promotion, etc.) that is significant enough to warrant a change in your child custody, child support or spousal maintenance order, you may be able to seek a modification. However, the standards the courts use in determining whether a modification is warranted depends on the issues that need to be modified. Courts are loath to change child conservatorship without significant and material changes in the child’s circumstances. In all such cases, the court will look to what is in the “best interest” of the child.
As a father, do I have any chance of getting custody of my child?
Of course! There is no doubt that the “old school” mentality of many courts was that the female was the one who should have custody of the child, but that has largely changed through the years. Some courts still feel this way, especially when young children are involved. However, the law is clear that the only consideration that the courts should take is the “best interest” of the child and we have been successful in getting fathers custody of their children.
Should I go to the Attorney General to get child support, or hire a lawyer?
Sometimes the Attorney General gets involved without being asked. For instance, when a mother applies for State aid of some type, she is likely to be asked about the father. If she is not receiving support, the Attorney General is likely to file an action. Prior to filing an action, the Attorney General will schedule an interview with the parents to determine whether the child support issues can be resolved. However, they make clear that they do not represent the parties, but rather are trying to reach common ground on the financial and custody issues. If the parties sign up, the Attorney General takes an Agreed Decree to the Judge to sign. We have had many clients come to us because of problems with an “agreement” they made with the Attorney General. Custody orders are often incomplete. Support orders are often insufficient. Our advise is it is always better to hire a lawyer that represents your interests first. That way you can guarantee that each and every one of your important concerns are fought over and incorporated into the final decree.
How long do I need to have lived in Texas to file for divorce?
The rule is you must have been “domiciled” in Texas for at least 6 months, and a “resident” of the county you are filing in for at least 90 days. The rules are modified somewhat for those who have been in the military.
How long does it take to get divorced?
In the best case scenario, a family court can grant a divorce 60 days after the original divorce filing. In practice, the time it takes to divorce depends on the size of the fight. If the parties are arguing about major issues like child custody or a property split, then the case will drag on well past 60 days. Some courts require mediation prior to a trial setting, which may further prolong the conclusion of the case. It is best to hire a lawyer who will not sit on a case, and will work with some diligence at resolving any conflicts.
Will the Court split our assets 50/50?
Sort of. The Texas Family Code does not require a 50/50 split. In fact, there are listed circumstances, such as fault in the breakup, that the Court is permitted to take into consideration when considering an unequal split. What the Court must do is divide the assets in a manner that is “just and right”. Obviously, this is subject to interpretation, and it is rarely the case where each party gets exactly the same value of assets in a divorce. Sometimes the parties will agree to a split that is unequal simply to avoid the attorneys fees that would result in a trial.
Can my spouse take my children?
Texas Law is clear. It is the policy of the Courts in the State to establish and maintain consistent contact between the children and their parents. Many times a spouse will threaten that they will divorce and “take the kids” with them. In reality, no matter what problems that spouses have with each other, it would take exceedingly dramatic facts for one spouse to be able to prevent the other spouse from having contact with their children. That is not to say that a Court will allow for exactly equal access to the children. 50/50 possession is becoming rare in Texas, as Courts have realized that such an arrangement is unworkable except in extraordinary circumstances.
How often can I see my children after divorce?
Quite a lot! If you are designated as the manager conservator of the children with the right to designate residence, they will be living with you. If you are not, then you will have the rights to possession or “visitation”. The standard possession order, which is presumed valid in Texas, provides for weekly visits on Thursday and weekend possession on the first, third and fifth weekend of each month. Additional time is provided on holidays, spring break and the summer. Of course, you and your former spouse can agree to anything you want outside of the decree.
How will the Court determine child support?
It is presumed that 20% of a parents net resources is adequate child support for one child. 25% for two, with the percentage going up for additional children. If you are already paying child support for another child, your child support payments will be reduced. If the child has extraordinary needs because of physical, emotional or mental issues, then the Court may increase child support. It is rare for a Court to vary downward from the presumed child support figures because the paying parent has financial difficulties, but it is in its discretion.
Should I file divorce before my spouse?
If you are absolutely sure that you want a divorce, you should not wait for your spouse. Waiting could result in a loss of value in your property split. In addition, if you believe that child custody will be an issue, you would be wise to frame the divorce in the terms you want by an initial filing. Really, the last thing you want to do is inform your spouse that you will be filing for divorce, and then wait, giving him or her time to hide assets or incur excess debt.