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Musick & Musick LLP
397 N. Sam Houston Parkway E.,
Suite 325
Houston, Texas 77060
Phone:
(281) 443-7747
Fax:
(832) 448-1147
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7.
What is "standard" visitation?
8.
How does a court decide which parent will get custody
of a child?
9.
What are temporary orders?
10. If my spouse
and I have agreed to all the relevant terms, what is the
general procedure for obtaining and finalizing the divorce?
11. Do I have
to show fault to get a divorce?
12. What
Is Mediation?
13. What Is The
Role Of A Mediator?
14. Is The
Mediator A Lawyer?
15. How Is A Mediator Chosen?
1.
How long does it take to get a divorce?
If the spouses have reached an agreement on all of the
relevant issues, a divorce may be obtained on the 61st
day after the divorce petition was filed. If an agreement
is not possible and the case must be tried, the length
of time is primarily dependent on the Court's docket.
In Harris County, most divorce cases are set for trial
within six to twelve months after the divorce petition
is filed.
2. 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.
3. Where can I file for divorce?
You can file for divorce in a county in which either you
or your spouse has lived for at least 90 days, as long
as that same person has lived in Texas for at least six
months.
4. 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.
5. 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
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Community property is all property other than separate
property. All property owned by either spouse during 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.
6. 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%). The payor is entitled to a reduction if he or she
is also responsible for the support of another child.
7. What is "standard"
visitation?
Most divorces involving children name one parent as the
primary Joint Managing Conservator and grant the other
parent (also a Joint Managing Conservator) a "Standard
Possession Order" for visitation. The visitation
is spelled out in great detail in the statute (Texas Family
Code Section 153.312) and should also be spelled out in
detail in the Final Decree of Divorce. A very short hand
version of a typical visitation order (assuming both spouses
reside within 100 miles) is as follows: the 1st, 3rd,
and 5th Friday of every month from Friday (beginning at
either school dismissal or 6:00 p.m.) until the following
Sunday at 6:00 p.m., every Thursday beginning at either
school dismissal or 6:00 p.m. and ending either at 8:00
p.m. that night or when school resumes the following morning),
as well as 30 days in the Summer, and additional visitation
periods for Spring Break, Thanksgiving, and Christmas,
depending on whether it an odd or even numbered year.
While the Standard Possession Order is the most common
visitation schedule, it may be inappropriate depending
on the particular case. You should consult with your attorney
to determine whether or not a Standard Possession Order
should be applied in your case.
8. How does a court decide which parent
will get custody of a child?
When the parents cannot agree on a custody arrangement,
the court will make the decision for them after considering
the totality of the circumstances, with the overriding
consideration being the child's best interests. To make
that determination, the court considers:
- The
child's age;
- The
child's gender;
- The
child's physical and mental health;
- The
parents' physical and mental health;
- The
parents' lifestyles;
- Any
history of abuse;
- The
emotional bonds between the parent and the child;
- The
parent's ability to give the child guidance;
- The
parent's ability to provide the basic necessities,
such as food, shelter, clothing, and medical
care;
- The
child's routines, including home, school, community,
and religious;
- The
willingness of the parent to encourage a healthy,
on-going relationship between the child and
the other parent; and
- If
the child is above a certain age, the child's
preference.
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In many cases, a consideration of these factors results
in awarding custody to the parent who has been the child's
primary caretaker. Although this is often the child's
mother, any preference for the mother strictly on a gender
basis is outmoded.
9. What are temporary orders?
Temporary orders are orders issued by a court, after either
a hearing or an agreement by the parties, which are designed
to last 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.
10. If my spouse and I have agreed
to all the relevant terms, what is the general procedure
for obtaining and finalizing the divorce?
It is common for spouses to believe that they have an
agreement, but they actually have not addressed all the
necessary terms, such as child custody or support, or
property division. 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 and either
has the petition served on the other spouse or the other
spouse executes a Waiver of Service. The Petitioner's
attorney then drafts an Agreed Final Decree of Divorce
and any other necessary documents which 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 attorney then go to court for a
hearing to have the Court enter the Decree and other documents.
11. Do I have to show fault to get
a divorce?
Texas is a no-fault divorce state which means that it
is not necessary 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.
12. What Is Mediation?
Mediation is a voluntary process which allows both you
and your spouse to maintain control over your destiny
and the terms of your divorce settlement. Both parties
and attorneys attend either a four-hour or eight-hour
mediation session, depending on the complexity of your
case.
13. What Is The Role Of A Mediator?
The role of the mediator is to facilitate an agreement
between the parties to prevent the necessity for a trial.
14. Is The Mediator A Lawyer?
Although some mediators are social workers, most commonly
the mediator is a lawyer who acts as a neutral person
to help you settle your case.
15. How Is A Mediator Chosen?
The mediator is chosen and agreed upon by the attorneys.
Every Family Law attorney has a "short list"
of competent mediators who specialize in family law with
whom we are familiar, whose style we are comfortable with,
and who we have found to be effective, particularly considering
the individual aspects of your specific case.
Disclaimer
This publication and the information included in it
are not intended to serve as a substitute for consultation
with an attorney. Specific legal issues, concerns and
conditions always require the advice of appropriate
legal professionals.
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