Family Law Frequently Asked Questions
Marriage and Divorce
Property Division and Divorce
Custody and Visitation
Grandparents and Visitation
Custody Modification, Visitation, and Child Support
Protective Orders – Family Violence Issues
Court Order Enforcement
How old do you have to be in Texas to get married?
Both parties must be at least 18 years old to obtain a marriage license. If either party is under 18 years of age, parental consent or a Court order is required.
Can I marry a relative?
It depends. You cannot marry:
- someone who is an ancestor (mother, father, grandmother, grandfather, etc.) or descendant (son, daughter, grandson, granddaughter, etc.);
- your brother or sister;
- your parent's brother or sister (aunt or uncle);
- your niece or nephew.
Can I legally marry someone of the same sex?
No, not yet.
What is a "licensed marriage?"
A "licensed marriage" or "ceremonial marriage" requires a license and is performed by an authorized official (minister, priest, rabbi, judge, etc).
What is an informal marriage or "common-law marriage?"
An informal marriage (sometimes called a common-law marriage) can be created when a man and woman sign and register an official document of marriage at the county clerk's office. A man and woman may also enter into an informal marriage if they agree to be married, live together in Texas as husband and wife, and represent to others that they are married.
Is there such a thing as a "common-law" divorce?
No. If the parties to a non-registered informal marriage separate and live apart for two (2) years or more, the parties may or may not need a divorce depending on the circumstances. Parties to a registered informal marriage must be divorced in the same manner as parties who were married in a ceremony with a marriage license.
Is an annulment different from a divorce?
Yes. An "annulment" is a proceeding to have a marriage declared void as if it never took place. A "divorce" is the proceeding to end a valid marriage. There are many similarities, however, in the manner that the property division and children's issues are handled.
An annulment may be granted if at the time of the marriage one party to the marriage was:
- under the influence of alcohol or drugs,
- mentally incompetent,
- forced to marry, or
- was misled about prior divorce. In most cases, the law requires that the person seeking the annulment must cease living together with the other party once the problem is discovered.
- previously married,
- married to a relative as designated by Texas law.
Must fault be found against a party for a divorce to be granted in Texas?
No. In Texas, a divorce may be granted without either party being at fault. A divorce may also be granted when one party is found to be at fault in the break-up of the marriage.
How long must I live in Texas to get a divorce here?
Before filing, one of the spouses must live in Texas for at least (6) months and in the county where the divorce is filed for at least ninety (90) days.
Would this be different if I were in the Military?
Yes. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.
What is a board-certified family attorney?
Attorneys who meet certain qualifications required by The State Bar of Texas may become board certified in family law. The status of "Board Certified" creates a specialty status for the attorney.
Do the rates charged by attorneys differ?
Yes, depending upon their knowledge, experience, qualification, and the complexity of the case.
What do I do to start the divorce process?
A petition for divorce must be filed in the district clerk's office and the required fees paid.
What if there are children that are party to the marriage?
If there are children born, adopted, or expected during the marriage, the suit for divorce must also address matter of custody, visitation, and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not or may not be the biological child of her husband, other circumstances arise which require a different application of Texas law.
Who is the "Petitioner" and who is the "Respondent?"
The party who files divorce first is called the "Petitioner" and the other party is called the "Respondent."
Is my spouse notified after I file my petition?
How is my spouse notified?
- By receiving a copy of the petition from a sheriff, constable, or Court approved private process server; or
- If the parties agree, the non-filing spouse may, after the petition is filed, sign a document called a "waiver"; or
- If your spouse cannot be located, a notice may be served by publication.
What happens after my spouse is notified of the filing?
Once a Respondent is officially notified, there is a deadline to file a response to the petition. If the deadline is not met, the Petitioner can go forward and obtain a divorce by "default."
What is a Temporary Restraining Order?
A Temporary Restraining Order sets forth the acts which either or both parties are prohibited from doing immediately after the petition is filed such as spending money unnecessarily, incurring unnecessary debt, or harassing the other party.
Can I get a Temporary Restraining Order (TRO) without notice to my spouse?
Yes, if the Court approves the request for a TRO, however; a hearing must be scheduled within fourteen days which requires appearance.
What happens if the TRO is violated?
A person who violates a TRO, or any other Court order, can be held in contempt of Court and punished by a fine and/or jail sentence.
Can my spouse also ask for a divorce?
Yes. The respondent can file his or her own request for divorce in a document usually referred to as a counter-petition for divorce.
What happens if I reconcile with my spouse?
You can dismiss your divorce proceeding.
How soon can the Court grant my divorce?
A petition for divorce must be filed with the Court for at least sixty (60) days before the Court can grant the divorce.
How long does it take to get a divorce?
If the parties are in agreement, a divorce proceeding can be finalized soon after the sixty-day waiting period is over. If the parties are not in agreement, the time it takes will depend on the Court's schedule and the complexity of the case. From start to finish, the divorce process may go through a number of phases including temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are not in agreement on some or all issues will usually take at least several months.
When am I divorced?
You are divorced when all the property and child related issues are resolved and the judge signs an order, usually called a Decree of Divorce.
How long must I wait to get married again?
In most cases, you must wait thirty (30) days, but the Court can grant a waiver to permit you to marry sooner.
What is Community Property?
It is presumed that all property acquired by the parties during the marriage is community property.
What is Separate Property?
Separate property is that property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance. Separate property issues are complex and require skilled training in order to be addressed accurately.
Does the judge divide Community Property and Separate Property at the time of divorce?
No. The judge can only divide the parties community property. The judge cannot take away a spouse's separate property, except in certain very unique and rare circumstances.
How is the property divided?
The judge divides the community property and liabilities in a "just and right" manner. In some circumstance the judge may award more of the community property and/or the liabilities to one of the spouses.
Spousal Maintenance in Texas
What is alimony?
Alimony is periodic payments from one spouse for the support of the other spouse.
Does the State of Texas have Court-ordered spousal maintenance?
Yes, but it is referred to differently depending on whether it is ordered while a divorce is pending which is temporary spousal support, or Court-ordered in a divorce decree which is "maintenance," or agreed upon by the parties as part of the terms of a final Court order which is generally called "contractual alimony."
Can either a husband or wife receive maintenance?
Under what circumstances would the judge order maintenance in a final decree of divorce?
Among other things, generally if one of the following circumstances exists:
- A spouse is convicted of a crime or received deferred adjudication for a crime that also constitutes domestic violence within 2 years of the filing of the suit, or while the divorce is pending; or
- The spouses have been married for at least 10 years, and the financial resources of the spouse seeking maintenance are limited; and
- The spouse seeking maintenance.
- Is unable to be self-supporting due to an incapacitating physical or mental disability; or
- Has custody of a child who requires substantial and continuous care, making it impractical and inappropriate for that spouse to work outside the home; or
- Clearly lacks the ability to earn a living, which would meet that spouse's minimum reasonable needs.
When do I need a custody order?
When you are separated and not divorcing, when you are divorcing or when a paternity or legitimation suit has been filed.
What is typically addressed in a custody order?
Except in the extreme circumstances (which must be discussed with an attorney), each party will have certain legal rights as a parent. The legal rights of each parent do not determine how much time that the parent will have with the child. Some legal rights may belong to both parents at all times (such as the right to consult with the child's schools or doctors); some legal rights may belong to both parents and apply when the child is with them (such as the right to discipline the child or provide routine medical care); and some legal rights will be given to only one parent (such as the right to say where the child will live or to consent to surgery that is not an emergency.) In some cases the Court may determine where the child will live (i.e., Harris County) or what school the child will attend. Aside from the legal rights, each parent will have specific time either agreed upon or set out by the Court when the child will be with them.
Does joint custody (or Joint Managing Conservatorship) mean the child lives half of the time with each parent?
Not necessarily. Joint Managing Conservatorship (the Texas legal term for powers with regard to children) is about legal rights, duties, powers, privileges. The possession of the children is a matter that should be discussed at length with an attorney.
Will I probably get joint custody?
Yes. It is now the preference in Texas. However there can also be orders naming a sole managing conservator and a possessory conservator instead of Joint Managing Conservators. The specifics should be discussed with an attorney.
Does custody mean where my child will live?
More than likely, your child will live the majority of the time with the parent who is given the legal right to determine where the child lives. That person is called the Joint Managing Conservator with the rights to determine the residence of the child. The other parent is also called the Joint Managing Conservator, or, in some circumstances, the Possessory Conservator.
Will the type of Custody affect the Child-Support?
Child-support will be discussed later on in this section, but generally answer is "no."
Will the type of custody affect the visitation?
Generally, "not". No matter what the custody arrangement is called, the Court's goal is to keep the child in a stable environment while encouraging a relationship with both parents. There are guidelines for visitation between each parent and the child which make provisions for weekends, spring break, Father's day, Mother's day, summer, Thanksgiving, and Christmas. The times with the child are shared, especially during the holidays. There are guidelines for visitation if the parties live within 100 miles of each other and another set of guidelines if the parties live over 100 miles from each other. The second set of guidelines is sometimes called "long distance visitation" and give extra time at spring break and in the summer for the parent receiving visitation. These parties can always make their own agreement about visitation. The Court will order specific times in case the parties cannot agree. The Court will make provisions for visitation if the parent visiting and the child lives within 100 miles or outside 100 miles from one another. The basic difference is that, outside of 100 miles, the visiting parent gets every spring break and more time in the summer and special provisions are made for weekends. The specifics should be discussed with an attorney.
What if I have to move after the order is signed by the judge?
If the Court has restricted the area where the child can live and you have to move outside that area, you must receive permission from the Court first or reach an agreement with the other parent. If the Court has not restricted where the child can live, you may move after giving notice to the other parent. If you move more that 100 miles away, the "long distance" visitation may take effect. If you are the "primary" parent and you move outside the area where you lived at the time of the order, you will be required to pick up the child at the end of each visitation period at the other parent's home. If it is too far to drive, you will be required to pay for the airline or bus ticket for the child. If the child is under a certain age, you may also be required to pay for the cost of the transportation of the adult who will have to accompany the child.
How much child support will I receive or will I have to pay?
Child support is generally set out according to a formula. The specifics should be discussed with an attorney. Under Texas law, child support is presumed to be proper if set at the following percentages:
20% of net resources for 1 child;
25% of net resources for 2 children;
30% of net resources for 3 children;
35% of net resources for 4 children;
40% of net resources for 5 children;
Not less than 40% for 6 or more children.
Net resources include salary, commission, overtime, tips, bonuses, dividend income, self-employment income, net rental income, severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, interest income, gifts, prizes, spousal maintenance, and alimony. In determining net resources, the Court shall take the total amount of the money received from the sources set out above and deduct social security taxes, federal taxes using only one deduction, state income tax, union dues, and the cost of the child's health insurance. The Court will consider if the person paying the support has other children to support and may consider other factors, which should be discussed with an attorney. The person paying the child support will also probably be ordered to provide health insurance and pay some portion of the medical costs that are not paid by the insurance company. Net resources in excess of $6,000 may be excluded from consideration.
How will the child support be paid?
It will be ordered to be paid monthly according to the payment schedule of the payor. Unless the parties agree or the Court finds a good reason not to, the child support will be deducted from the salary of the person paying support.
What if the support is not paid?
You can ask the Court for help in enforcing the order. That will be discussed in another section of this FAQ section.
May I ask the judge for visitation with my grandchild?
Yes, under certain conditions.
Under what conditions will a judge grant my request for visitation with my grandchild?
The judge may order visitation with the grandchild if:
- The parental rights of at least one parent have not been terminated; and
- Visitation with your grandchild is in the grandchild's best interest; and
- At least one of the following is true:
- Your child (a parent of your grandchild) has been incarcerated during the three month period prior to filing the petition, or has been found to be incompetent; or is dead;
- The parents of your grandchild are divorced or have been living apart for at least three months; or Your grandchild has been abused or neglected by a parent; or
- Your grandchild has been found by the Court to be a child in need of supervision; or
- Your child (a parent of your grandchild) has had his or her parental rights to your grandchild terminated; or
- Your grandchild has resided with you for at least six months during the last two years.
Are there any circumstances under which I may not request visitation with my grandchild?
Possibly, but this area of the law is changing dramatically. You will need a skilled attorney to deal with this complex issue.
What to do if your child was born out of wedlock or if your husband is not the father or your child.
What is a paternity suit?
This is a lawsuit to determine a legal biological parent.
Under what circumstances is a paternity suit filed?
A paternity suit may be filed to establish the biological father or mother of the child.
Who may file a paternity suit?
Generally, the mother, the man claiming to be the father, the child (either individually or through a representative) or governmental agency may file the suit.
When can you file?
A suit can be filed at any time before the child is born and up until two years after the child is an adult, which is generally 18 years of age. This area of the law fluctuates often, and a skilled attorney should be consulted.
Why is a paternity suit filed?
To establish the child's legal relationship with a biological parent and to establish child support, visitation, or custody. In certain cases, possibly to reimburse the biological mother for prenatal and postnatal expenses.
What happens after a paternity suit is filed?
If the parties do not agree on the parentage, the Court may order blood test on the parties.
Who pays for the blood test?
If the parties cannot agree, the Court will decide.
What happens after the blood test?
The lab will prepare a report for the Court. If the test shows that the named parent is NOT the biological parent, the Court will dismiss the case. If the test shows that the named parent is at least 99% sure to be the parent (no test is 100%), the Court will decide custody, visitation, and support if the parties cannot agree.
Is the child's name affected?
Generally, the Court may enter an order giving the child the father's last name. However, in some circumstances, the child will retain the mother's last name.
What if the mother is married when the child is conceived or born and the mother's husband is not the father?
Under Texas law, the mother's husband is presumed to be the father of the child. A suit may be brought to have the biological father named as the legal father; which is called a paternity suit.
Who can file this suit?
A paternity suit can be brought by the mother, the husband, the man who claims to be the father, a government agency, or a child-placing agency.
When should this type of paternity suit be filed?
This type of suit may be brought if a husband and wife are divorced and one of the parties claim that the other spouse is not the biological parent of the child. This type of suit may also be initiated by the person claiming to be the biological parent. What if a biological father does not want to have anything to do with the child and wants to proceed to terminate his rights to the child? A proceeding for the termination of his rights may be filed by the mother, but a request by the biological father is frowned upon by the Courts.
Can I settle my case out of Court?
Of course. The case can be settled between the parties and their attorneys or through mediation, which is discussed in the "Mediation" section on collaborative law. If you settle without mediation, the Court may appoint an attorney to make sure that the child's interest is protected under the law. The Court must approve the settlement before the parties implement it.
When is a voluntary paternity (parentage) suit filed?
A voluntary paternity (parentage) suit is filed when a parent acknowledges that he/she is the biological parent of a child and the parents are not married.
Can the terms of a Divorce Decree regarding children be changed?
Yes, through a process called modification.
What terms can be modified?
Custody (Conservatorship) Terms of visitation Child support, and other issues concerning the children of the parties.
Which Court can modify an order regarding children?
A request to modify children's issues must be filed in the Court which last entered an order regarding the children unless the residence of the children has changed. Then new issues arise which should be discussed with an attorney.
Who can file a request to modify an Order regarding children?
Generally, any person who is affected by the Court Order can request a modification.
What are the reasons (grounds) that a Court will modify custody of a child?
The grounds for a change of custody are complex and should be discussed with an attorney. Some of the factors the Court considers are changes in circumstances of the parties, or of the child. The Court must always evaluate whether or not the change would be in the best interest of the child.
Do I have to wait a certain amount of time before I can file a motion to modify custody?
Except in certain extreme circumstances, you must wait one year after the Court entered the last custody Order.
At what age can my child choose where to live?
If a motion to modify is filed, a child 12 years or older may file an Affidavit with the Court naming the parent with whom the child wishes to live. However, this choice is not binding on the Court because the Court must also consider technical grounds and the best interest of the child.
How can I get legal custody if my child is living with me but the other parent has Court-ordered custody?
If the person having custody of the child under the last Court Order voluntarily leaves the child in the possession of another person for a period of more than 6 months and the Court finds that this arrangement is in the best interest of the child, the Court may modify custody upon the filing of the proper motion with the Court.
How can I modify visitation with my child?
The Court may consider some of the following issues:
- A material and substantial change of circumstances since the last visitation order;
- The last visitation Order is unworkable;
- The person with custody moves outside of Texas or moves without giving proper notice to the person with visitation rights before the move;
- A person with visitation rights repeatedly fails to exercise visitation with the child.
Specifics should be discussed with an attorney.
On what grounds will a Court modify child support?
Child support may be increased or decreased depending on any change in financial circumstances of the parties or a change in the needs of the child.
What is a Protective Order?
A Protective Order is a Court Order issued to protect victims of family violence.
What is family violence?
Family violence is an action or the treat of an action by a member of a "family" or a "household" against another member of the "family" or "household" that is intended to cause physical harm, bodily injury, assault or sexual assault, or reasonable fear of such action.
What is a "family?"
A "family" is anyone related by blood or marriage, people who used to be married to one another, people who are the parents of the same child, foster children and their foster parents, even if not living together.
What is a household?
A "household" is people living together even if they are not related, and this can include people who at one time, lived in the same household.
Who can file a Protective Order?
Any adult in a household can file for themselves or any other member of the household. If it is a child who needs protection, any adult can file for the child. The Attorney General, the District Attorney or the Department of Protective and Regulatory Services may also apply for any member of any household.
How long is a Protective Order effective?
A Protective Order is effective for not more than one year, but circumstances regarding the application for a Protective Order must be discussed with an attorney to insure accuracy.
What agencies are available to assist with family violence complaints?
The District Attorney's Office, Department of Protective and Regulatory Services, or any law enforcement agency.
How are law enforcement agencies notified of "Protective Orders”?
The Clerk of the Court sends a copy of the Order to the Chief of Police of the city where the member of the family or household protected by the order resides, if the person resides in a City, or to the appropriate Constable and the Sheriff of the county where the person resides, if the person does not reside in a city; and the Department of Public Safety. These are some of the ways that Notice of a Protective Order can be dispensed to the proper authorities for enforcement.
What is enforcement?
Enforcement is a lawsuit that is filed to force a person to obey a Court Order.
What Orders will the Court enforce?
In the context of family law the Court may enforce Orders dealing with the following matters:
- Child Support
- Refusal to present the child for visitation
- The property division ordered by a Court in a divorce
- Post-divorce spousal alimony (now called "maintenance").
How does a Court enforce an Order?
Usually Court Orders will be enforced by "contempt." If a person is found in "contempt" of a Court order, the judge may punish the person by ordering them to pay a fine, by sending them to jail, or both.
What is needed in order to make a Court Order for visitation or child support enforceable be contempt?
In order for a Court Order to be enforceable by contempt, it must use "command language" and be clear, specific, and unambiguous, so that the parties will know exactly what they have ordered to do or not to do. In the case of visitation, the Court order must command the party who has the children to "surrender" them to the other party at the start of the visitation period, and order the party to return the children at the end of the visitation period. Additionally, the Order should identify the specific place where the children are to be exchanged, and state in specific detail the time when each period of visitation is to begin and end. In the case of child support, the Court order must state the specific amount to be paid, to whom the payments are to be made, the date on which the payments are to begin, where the payments are to be made, and when the payments are to end (which will be either a specific date, or the occurrence of a specific event).
What if a Court Order is not clear and specific enough to be enforceable by contempt?
If a Court Order is not clear and specific enough to be enforced by contempt, the Court can clarify the Order. The Court will then give the party an opportunity to obey the Order.
What happens if a person is found in contempt of Court?
When a party is found in contempt of Court, the judge can order the party to pay a fine and/or order that the party be confined to jail.
If a party is found in contempt of Court, will the judge always send them to jail?
No. If the party is employed, sending the party to jail may not be the best alternative because the party will almost certainly lose his or her job. For this reason if the Judge sentences a party to jail, the Judge may suspend the jail sentence. If the Judge does so, the Judge will impose various conditions, which can include requiring the party to make specific payments (if the contempt involves failure to pay child support), ordering the party to pay attorney's fees, costs of Court, and a fine. The Judge can also place the party on probation (now called "community supervision") and can include a requirement that the party obtain counseling on financial planning, budget management, alcohol and drug treatment, or other matters that may have caused the person to disobey the Court Order. When a jail sentence is suspended, the Judge may order the party to appear in Court at a later date in order to determine if the party has obeyed the conditions of the suspended jail sentence. If not, the party may be sent to jail.
Are there any limitations on what Orders can be enforced by contempt?
Yes. For example, in Divorce cases it is common for the Decree to include Orders requiring a party to pay specific debts, liabilities, or obligations. Such an Order is not enforceable by contempt because the law does not allow a party to be imprisoned for non-payment of a debt. Child support is enforceable because it is not considered to be a debt.