Divorce and the many financial and emotional issues surrounding it can be confusing. To clear up some of this confusion, Attorney Gerald R. Yoakum offers answers to the questions he is most frequently asked.


Is there a waiting period between when a divorce is filed and when it is final?

Most jurisdictions have a waiting period. This serves either as a cooling off period or as a time to adjust your affairs to single life. In Texas, you must wait 60 days from the time you file until your divorce is final, even if the divorce is uncontested.

Since Texas is a community property state, can you expect a "50-50" split of assets in a divorce?

Not necessarily. Property in a divorce is divided in a manner that the judge deems "just and right" and he or she may look at projected future earnings of the parties, who's at fault for the divorce and other criteria in making a disproportionate division.

Are divorce actions matters for a judge, or can you have a jury hear the case?

Either party in a Texas divorce can ask for and receive a jury trial, a unique feature of Texas law. But as a practical matter, judges hear most divorce-related matters and jury decisions that are binding on the court are limited. Juries are more common in child custody cases.

What are my chances of gaining custody of my children?

That depends on the facts of your case. Joint custody is preferred in this state. If both parents were involved with the children during the marriage, joint parenting will be the presumption going into the case. There are many misconceptions about joint custody and it is important to understand them before making a decision.

Does joint custody mean each parent having equal time with the children?

Not always. Joint custody means the sharing of parental rights and duties and not necessarily equal time.

Will I have to pay child support?

The spouse who does not have primary custody of the children will, in most cases, pay child support to the primary custodial parent after a divorce based on guidelines in the Texas Family Code, according to income.

If my spouse wants a divorce and I don't, how can I stop it?

Once a divorce is filed in Texas and one party wants to go through with it, you can't stop it from happening in the court system. Your only hope is to convince your spouse to consider reconciliation.

Can a prenuptial agreement avoid messiness at the end of a marriage?

"Pre-nups" have become a very popular way to avoid the struggle over assets when a marriage ends. These agreements have historically been used to deal with assets that are not divisible, such as an interest in a family owned business or a large tract of real estate. Now people with relatively modest holdings use prenuptial agreements to make a split less messy.

What is the first step in the divorce process?

Once you've decided that divorce is the best thing for you, your attorney will file the divorce petition. This contains certain factual information about the parties, as well as grounds for the divorce. Because Texas is a no-fault state, the reason for the divorce usually is incompatibility. This means the parties have different interests and have grown apart and this condition is irreconcilable.

Is mediation required in most Texas divorces?

Yes, in most cases. Texas has the most progressive and intensive use of mediation in the country. Most District Courts order mandatory mediation in all divorce cases(check your local rules). Since then, most Texas courts have begun to require mediation before a family law case can be scheduled for trial.

What's the first thing I need to do to build a winning divorce case?

Beside hiring an aggressive family law attorney, the most important thing you can do at first is to secure three to five years of financial records and anything else that might become evidence in your case.

How often is alimony awarded in Texas?

Although the Texas Legislature passed an alimony statute in 1995, not many people qualify. Unless you have no significant assets or means of support or you and your spouse agree to it, there will be no significant long-term alimony once the divorce is final.

Can one attorney represent both parties in a divorce?

No. An attorney can draft the documents in a divorce for both parties to sign, but he or she can't legally advise more than one of the parties how to proceed in the divorce.

If your case is scheduled to go to court on a certain date, are you guaranteed that it will happen?

No, because 10 to 15 cases may be set on the judge's docket the same day as your case. Another case may be heard before you and your case may be reset for another day.

MORE QUESTIONS I HAVE BEEN E-MAILED, I HOPE THEY HELP.

  1.  Can I get a divorce if my spouse does not agree to it?

Yes.  The Texas Family Code provides for a divorce on the grounds of insupportability. Divorce can be granted to either party to a marriage, without consideration of fault, if the "marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."  (Family Code, Section 6.001)

   

2.  Are the other grounds for divorce?

Beside insupportability, the other grounds for divorce are: adultery, conviction of a felony, abandonment, living apart for three years or more, confinement and in a mental hospital. There are of course, limits and requirements for some of these grounds.

   

3.  What is community property? What is separate property?

A spouse's separate property consists of the property owned or claimed by the party before marriage, acquired by the spouse during marriage by gift, devise, or descent, and some recoveries for personal injuries.

Community property is simply property acquired by either party during the marriage, except separate property. The income from separate property is community property, for instance the dividends on separate common stocks.

Property owned by a married person is presumed to be community property until it is established as separate property.

   

4.  Why is it important to know whether an asset is separate and community?

Primarily because a divorce court cannot divest a person of his/her separate property. Also, a person has an unqualified right to manage separate property.

   

5.  How does the court decide how to divide the property?

Texas Family Code Section 7.001 states: "In a decree of divorce or annulment, the court shall order a division of the estate o the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Of course, the property aspects of some divorces are complicated, and must be studies on a case by case basis.

   

6.  What about retirement income?

Generally, retirement earned during marriage is community property. Any portion of the retirement earned before marriage is the separate property of the person who earned the benefit.

There are many kinds of retirement or deferred compensation plans. They work differently an each case must be carefully studied.

   

7.  How is child support determined?

Child support paid by an individual earning under $4,000 a month is determined by a percentage of the obligor's (person paying support) net resources. Net resources is gross income reduced by certain defined expenses. The idea is similar to net income.

The net resources figure, in conjunction with the number of children and other factors, is then used to calculate child support.

   

8.  Can the divorce court divide the parties' debts?

Yes and no.  The court may, and often does, as part of the property division, order one party or the other to pay specific debts. If the husband is ordered to pay a debt, and doesn't, and the wife has to pay, she can sue the ex-husband and obtain a judgment against him for what she had to pay.

However, the picture changes when the rights of the creditor are considered. If the debt was a joint debt during the marriage, a creditor may continue to hold both parties liable for the debt, and collect from either. The creditor was not a party to the divorce, and is not bound by the divorce decree.

                         FAQ ABOUT CHILD SUPPORT 

1. How is child support determined?

Child support paid by an individual earning under $4,000 a month is determined by a percentage of the obligor's (person paying support) net resources. Net resources is gross income reduced by certain defined expenses. The idea is similar to net income.

The net resources figure, in conjunction with the number of children, and other factors, is then used to calculate child support, twenty percent (20%) for one child, twenty five percent (25%) for two children, 1/3 for three or more.

 

2. How long is child support payable?

Basically, child support is payable until further order of the court, or until child is 18 years of age and has graduated or stopped attending high school, or until child is emancipated through marriage, removal of disabilities by a court, or by operation of law, or, until the death of the child, if the child is disabled, for an indefinite period.

 

3. How is child support enforced?

If child support is not paid, it can be enforced by filing a Motion for Enforcement, or Contempt, in the Court of Continuing Jurisdiction (the court that granted the order). Failure to pay child support can have very serious consequences, including imprisonment until the support is paid.

The Texas Attorney General's Office collects past due child support, though some find their service slow. It is, however, competent and thorough. Persons trying to collect child support can also go directly to court with a Motion to Enforce, for which an attorney is strongly recommended

 

4. Can child support be modified?

Yes, it can be modified up or down. See the next section;Call us for details.

MODIFICATIONS OF PRIOR ORDERS

Modification of a divorce
1. When is a Divorce Decree final?

Most of the matters covered by the Divorce Decree are final soon after the divorce hearing, usually 30 days after the Decree is signed and entered by the Court. However, matters affecting children of the parties, such as conservatorship (custody), support, and possession of the children (visitation) are not final while the child is under the continuing jurisdiction of the court, usually until the child is 18 and out of high school.

2. Can orders regarding children of the parties be modified (changed) after the rest of the Decree is final?

Yes, under some circumstances.

Modification of Managing Conservatorship

Managing conservatorship means the relationship between a child and a managing conservator. In other words, the managing conservator is the person with custody of the child. Managing conservatorship may be sole or joint.

Modification of Sole Managing Conservatorship

If the circumstances of the child, sold managing conservator (person having custody), possessory conservator (person having visitation or possessory rights), or other person affected by the Order to be modified have materially and substantially changed, and the appointment of a new managing conservator would be a positive improvement for the child, the previous order may be modified.

If a child 12 years of age or older files written notice with the court naming the child's choice of managing conservator, the court can grant the child's wish if the court agrees that such choice of managing conservator would be in the child's best interest. (Positive improvement not required.)

The child's power to name a managing conservator, with the judge's concurrence, is relatively new, at least at the ten year old level, and the writer's experience is that judges place considerable weight upon the child's choice.

Modification of Joint Managing Conservatorship

In a joint managing conservatorship, the rights and duties of a parent are shared by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party.

It is a little easier to modify a Joint Managing Conservatorship (such as changing the right to determine the child's residence, and major possession from one Joint Conservator to the other). The focus is on the child, and the child's best interest.

The court may modify the terms and conditions of a joint managing conservatorship if there has been a material and substantial change in circumstances, or the previous order has become unworkable, if the modification would be a positive improvement and in the best interest of the child.

Modification of Child Support

The rules are similar. Support Orders can be modified if the circumstances of the child or a person affected by the order, have materially and substantially changed since the rendition of the last order.

IF YOU HAVE ANY QUESTIONS FEEL FREE TO E-MAIL OR CALL ANYTIME!