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Frequently Asked Questions About Divorce

Is it possible to reverse an uncontested divorce decree?

This depends on what is meant by “uncontested divorce decree.” If you were in agreement with the decree at the time and signed off on the decree, then the decree cannot typically be reversed. If there are assets that were hidden or not otherwise divided, then the court may be able to divide those remaining assets, but the rest of the decree would remain intact. Any other changes would need to be done through a “modification,” which is an entirely different process. If by “uncontested divorce decree” you mean a decree that was taken as part of a default judgment and you did not participate in the divorce process or agree to the decree, whether or not the decree can be overturned depends on whether the procedural requirements were met the first time around and how long it has been since the decree was finalized.

My spouse is divorcing me. Can they take property without a divorce decree?

This depends on the county in which your case is being handled, on any temporary orders in place, and on a potential number of other issues. At the most basic level, the parties have equal ownership interest in community property, so each party has the right to possess community property. In some counties, however, there is a “standing order” that prevents parties from moving some types of property. In addition, any temporary orders that have been put into place by the court would control who has the right to control certain property. Finally, should one party hide or get rid of property during the divorce process, this can generally be discovered and corrected through the use of the formal discovery process.

Can I be awarded the property before the divorce gets finalized?

In general, yes. It is a possibility that you can be awarded property before the decree is finalized. You can be awarded property through temporary orders of the court in some situations. In addition, the parties can reach agreements about certain pieces of property before the divorce gets finalized. These agreements are typically in writing and in the form of a “Rule 11 Agreement.” If the parties use the mediation process to reach a settlement, the parties will enter into a “Mediated Settlement Agreement,” which can also award property to one party before the divorce is finalized.

Am I entitled to half of my husband’s business when we get a divorce?

This depends on when your husband acquired the business. If your husband started or purchased the business during the marriage, that business is a martial asset which is presumed to be entirely community property. If the business is entirely community property, you have an equal one-half (1/2) interest in the business. When you get a divorce, the business will be part of the community property to be considered and divided by the court. If your husband started or purchased the business prior to the marriage, the business itself constitutes his separate property. If the business itself is separate property, the business will not be part of the community property to be considered and divided by the court.

However, regardless of when your husband acquired the business, any income earned during the marriage by your husband through his business constitutes community property. You have an equal one-half (1/2) interest in all of the community property income earned from your husband’s business during the marriage. When you get a divorce, that income is part of the community property to be considered and divided by the court.

Is it required to divide up real property during a divorce?

It depends on whether the real property owned by either party during a divorce is community property or separate property. Community property is all property earned or acquired during the marriage that is not separate property. Both spouses have an equal one-half (1/2) interest in community property. Separate property is property acquired prior to the marriage, or property acquired during the marriage by gift, devise, or descent. Separate property belongs wholly to the spouse who acquired it.

If the real property was purchased during the marriage jointly or by either spouse, the real property presumptively constitutes community property. If any community property funds were used to purchase the real property, then that real property will be divided among the spouses during a divorce because each spouse has an equal one-half (1/2) interest in that part of the real property which is considered to be community.

If one spouse owned the real property prior to marriage, or acquired the real property during the marriage by gift, devise, or descent, then the real property will not be divided during the divorce. Furthermore, if the source of funds used to purchase the real property during the marriage were entirely separate property funds of one spouse, the real property is separate property and will not be divided up during the divorce.

Can I withdraw money and hide it before filing for a divorce?

You can withdraw money and hide it before filing for a divorce. However, there are consequences for these actions after filing for divorce. After you file for divorce, there will be an examination of the all of the assets owned by you and your spouse. All of your assets as of the time of filing for divorce are presumed to be community property. Community property is defined as everything you and your spouse earned or acquired during the marriage. Both you and your spouse have an equal one-half (1/2) interest in all community property.

The money you choose to withdraw is presumed to be community property. You will be required to reveal the existence and location of this money as it is presumptively part of the community property estate. You will be accountable to your spouse for their equal one-half (1/2) interest in any money you withdraw and hide. Additionally, your actions may enable your spouse to bring a claim against you of fraud on the community property estate.

What is collaborative law?

In a suit for the dissolution of a marriage, the parties and their attorneys can agree in a written collaborative law agreement to use collaborative law procedures. Under these procedures, the parties and their attorneys agree to use their best efforts and to make a good faith attempt to resolve their dispute without the court’s intervention. The distinctive feature of collaborative law, compared to other forms of alternative dispute resolution, is that the parties agree in advance that their lawyers will be disqualified from representing them in court if the collaborative law procedures fail.

How can I ensure I get the house in the divorce?

Many times the house goes to the spouse who is awarded primary custody of the children. The idea behind this is to give the children as much stability as possible by allowing them to stay in their home. If there are no kids involved, the court may look to see which spouse can afford the mortgage payments. This is where you have to be honest with yourself. While you may think you want the house, it’s important to think about the responsibility associated with that. You’re not just getting the house; you’re getting the debt associated with it. You’ll need to remember to budget for maintenance, repairs and increasing property taxes. In addition, in order to keep the house, you may have to trade away other assets. You may decide it’s not worth it. If neither spouse can afford the mortgage payments, the court may order the house sold and the parties will split the proceeds.

Does my ex-spouse have a right to my social security benefits after divorce?

No. Only the community estate is divided upon divorce. And according to Texas law, social security payments are not considered part of the community estate. Similarly, social security benefits are not to be considered in calculating spousal maintenance. Texas Family Code Section 8.055 indicates that for purposes of calculating spousal maintenance, the term “gross income” does not include supplemental security income, social security benefits, disability benefits, or workers compensation benefits.

If I have joint custody, can my ex move out of state with our child?

The answer is: it depends. In an original action it is imperative that a parent request a geographic restriction to be imposed upon the other child. One of the biggest mistakes we see unrepresented parties make is not to address this issue at the time of entering an agreement regarding child custody. It is much harder to prevent a parent from moving with the child or children after this omission, than it is to address it during the negotiation or litigation phase of the custody suit.

Is there a residency requirement when filing for divorce in Texas?

Yes. In order to file for a divorce in Texas a party must meet the residency requirements outlined in the Texas Family Code. Barring a few exceptions, a party must show that he or she has lived within the State of Texas for the preceding six months, and within the county of filing for the previous ninety days.

What is an Amicable Divorce?

An amicable divorce is a process where both parties work together to resolve their issues outside of the courtroom. Amicable is defined as  “without serious disagreement or rancor”.  Some divorces can be so amicable that there is nothing in dispute. In such circumstances, one party files an original petition for divorce, the other waives the necessity to be served with citation, and the parties enter an Agreed Final Decree of Divorce to be “proved-up” by one or both parties 60 days after the filing of the petition. Other amicable divorces avoid litigation by alternative dispute resolution methods, such as mediation.

What does it take to Modify a Divorce Decree?

A divorce decree (dealing only with the division of marital property and not with children of the marriage) cannot be modified. However, a divorce decree that does address child custody, possession, access, and support can be modified upon the showing that the circumstances of a party or the child have materially and substantially changed since the rendering of operative or underlying order. There are heightened pleading requirements where a parent wishes to modify which conservator has the exclusive right to designate the primary residence of the child if this modification is brought within one calendar year of the final judgment.

My spouse says they want a no fault divorce because we can’t afford lawyers, how can I know this is safe?

The notion of “no fault” divorce is often misinterpreted and misapplied.  In the legal system, “no fault” applies to the most commonly-plead for ground for divorce: insupportability. Historically, one would have to plead and prove fault by the other spouse – such as adultery or cruelty – to obtain a divorce. Now in Texas (one of many “no fault” States) a party need only prove insupportability to obtain a divorce. Working without representation can save money, but also lead to disastrous results. The final decree of divorce controls the property division of the marriage and what rights, duties, obligations, and possession schedules each parent has for the children of the marriage. At the very least, one should consult with an attorney about the contents of this incredibly impactful document.

If my spouse left our home and children recently, do they still have rights to see our children?

The leaving spouse is still the parent to the child or children and therefore has rights to see his or her offspring. However, if there is danger to the children by such access, it is wise to seek the appropriate protections from the Court in the form of a protective order, restraining order or temporary orders (the amount of protection sought should correlate to the danger such visitations present to the child or children).

I am getting divorced in Austin. Do I need an Austin family lawyer?
Depending upon what is involved in your specific case, it is possible to file for divorce on your own. The problem today is that the majority of married couples have children and property to deal with in the course of the divorce settlement. Ordinarily, it is advisable that you consult with a family law attorney to review your situation when you encounter a life-altering event such as divorce. A divorce lawyer from Zinda Law Group PLLC will understand the difficulty of your situation, even if the terms of the divorce have been agreed upon, and there are no child custody or support matters to resolve. Another benefit of discussing your divorce with our divorce attorneys is that they will provide you with sound and trusted legal guidance with regard to divorce and family law. We strongly advise that you contact our office if you are considering divorce.

How do I choose a divorce attorney in Austin?
There are basically three ways that you can search for an attorney in the Austin area depending on what your circumstances are:

Advertisements – Advertisements for all types of attorneys are everywhere — in the newspaper, phone book, Internet, radio, billboards and on television.

Online research – Using the internet is a great place to start searching for an attorney in your local area. Not only is there a wealth of information online, but this method of searching will also enable you to narrow your search and check out firm and lawyer information privately and at your convenience.

Referrals – Talk with family members, friends, or co-workers that have hired an attorney for situations similar to yours and get their recommendations. If you have contacted a legal service organization, ask for their recommendations as well. We are proud of our large number of personal referrals from our clients to their family, friends and associates.

What is required to get a divorce in Texas?
In Texas, at least one of the parties in the divorce is required to be a state resident for a minimum of 180 days, or 6 months. The court will not grant a divorce until the property issues have been resolved. Additionally, when there are children, whether they were born to the couple or adopted, custody and support issues need to be determined.

Filing the “Original Petition for Divorce” is the initial step in the divorce process here in the state of Texas. Most counties have one or more courts that handle family law cases. After the courts have processed the Original Petition for Divorce, it must be delivered to your spouse. Usually this is done by a Constable, private process server, or county sheriff.

How will the Texas court divide up the property my wife and I bought in Houston and Plano during our marriage?
In divorce settlements in our state, property is classified into two categories – community or separate. “Separate” property is property that was bequeathed or given as a gift to one of the parties and any property that was owned before the marriage took place. “Community” property is any property that was acquired during the marriage. The court typically divides all community property between the two parties, whereas it will leave any separate property alone. The community property is divided fairly, and the parties get to keep the separate property they brought into the marriage if it remained separate.

An experienced attorney should be consulted whenever couples are divorcing to ensure that property is divided fairly and that the divorce proceeds as smoothly as possible. Going through divorce is never easy, but you should never go it alone.

How do Texas courts determine who will get custody of our three minor children after we divorce?
Determining which parent will get custody of any children in the marriage is one of the most difficult decisions that the court has to make. Courts base their decision on what is in the “best interests of the child.”

Having the counsel of an experienced family law attorney when you are going through a divorce is a wise idea. Additionally, if you are considering modifying that custody order at a later date, you should have an experienced family law attorney assisting you. Remember that determining child custody is a difficult and oftentimes complex process.

There are typically several questions that couples who are divorcing will ask the attorney. These include:

  • How much child support do I have to pay?
  • How much visitation am I going to get?
  • What can I do if my spouse refuses to let me see my children?
  • What happens if we don’t agree on the child custody and visitation arrangement?
  • Where are the children going to be living?
  • What is child support and how is it determined in Texas?

One of the most important parts of the divorce process is the determination of the amount of child support that is going to be paid. There are very specific guidelines (Texas Child Support Guidelines) that determine the amount of support to be paid. The percentages set out in the guidelines may be reduced if there is a “duty to support” for other children from another relationship.

Also the amount can be above the “guidelines” if the Court deems that it is in the best interests of the child to do so.

The specific needs of each child are taken into consideration during the determination of child support amounts. Another issue is who will be responsible for the child’s health insurance and other expenses.

How long do I have to pay child support?
In the state of Texas, a parent who is obligated to pay child support will have to pay that support until the child attains the age of 18 or until the child graduates from high school at the end of the school year. However, there is an exception where age is concerned. If the child is mentally or physically impaired, the court may order child support past the age of 18 and for an indefinite period of time. Remember that determining the amount of child support to be paid is oftentimes a complex and difficult process. If you have any questions regarding this issue, you should always consult with an experienced family law attorney who is well-versed at Texas divorce laws and the Texas Child Support Guidelines.

My husband moved away from Austin and now has stopped paying court-ordered child support. What should I do?
If your ex-husband has moved and stopped paying court-ordered child support, the first step you should take is to contact the family law attorney that assisted you in the divorce. Even if your ex-husband moves overseas, he is still obligated to pay support, although collecting it may be difficult. An enforcement action may be necessary in order to find your ex-husband and start receiving child support again.

The bottom line is that if the court has ordered your ex-husband to pay child support, he is responsible for paying it whether he stays in Austin or not. It will be very difficult for you to pursue the delinquent child support on your own, which is why it is recommended that you get in touch with the family law attorney that was involved in your divorce. He or she can assist you with seeking an enforcement order and advise you of other appropriate legal measures.

My husband’s parents say they should have visitation rights with their grandchildren after the divorce. What is the law in our state about this?
Grandparents of children involved in a divorce do have certain rights in under state law. They are entitled to visitation and in some cases even the custody of those children. State law provides: “The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.”

Family law attorneys are experienced where grandparents’ rights are concerned, especially when it comes to custody and visitation. They are just as committed to serving the needs and rights of the grandparents as they are with those of the child’s parents. If you are dealing with a legal issue concerning a situation like this, you would be wise to contact an experienced family law attorney in order to find out what you can and cannot do.

I don’t think I need a family law attorney because I can download the divorce forms from the Internet. Can’t I do this divorce myself?
With the economy being as unstable as it has been the past couple of years, many divorcing couples have opted to file for divorce without the assistance of family law attorneys. The biggest reason behind this is saving money. However, the disadvantages of filing for divorce without the help of an experienced family law attorney far outweigh the advantages of saving on the costs. If the divorce is simple and there are no children or property involved, do-it-yourself divorces can have some advantages.

However, once either of the divorcing parties contests anything in the divorce papers, or when there are children and property issues to be resolved, chances are you are going to have to revert to what you were trying to avoid doing anyway – hiring an experienced family law attorney to assist you in all matters of the divorce. Remember that they have the experience and the expertise to assist you in these matters and know the laws better than you do.

My husband and I have a lot of credit card debt, and most of it was caused by him. Am I responsible for the debt he ran up?
One of the more complicated aspects of a divorce is the division of property. Our state is considered a “community property” state, which means that all debts and property that were obtained during the marriage are subject to division between the divorcing parties. Should you purchase a home during the time that you were married, the court may order you to sell it and then divide the proceeds 50/50.

In your case it is difficult to know whether you are going to be responsible for your husband’s indebtedness without consulting an experienced family law attorney prior to starting the divorce proceedings. There are instances where a court ruling may be necessary to determine the answer to questions such as yours.

I’m not getting enough child support for my children, and my ex-husband just got a higher paying job. What can I do to get more support money from him?
If there have been changes in the earnings of a divorced parent who is paying child support, a modification to the court order may be necessary in order to receive the proper amount of support based on the earnings of that parent. Usually, the law regarding any child support modifications involves proving that circumstances have changed dramatically since the court orders were finalized. Modifications to your original court-ordered child support may be in order in your situation.

An increase in child support is usually based on two things – a substantial increase in the parent’s ability to pay and the needs of the child or children in question. Regardless, you should always consult with an experienced family law attorney rather than trying to pursue this on your own.

How much are my legal fees going to be for a divorce?
The fees that family law attorneys charge are normally related to the amount of time that the attorney spends working on your case. The more you and your spouse come to an agreement about the terms of the divorce, the less time your attorneys will have to spend working on your case and the less costly the divorce will be.

Remember that the most amicable settlement possible is the goal of any divorce. The courts will do everything in their power to ensure that things are equitable and that all family law matters are settled in the best interests of the divorcing parties and any children that may be involved. You may want to consider hiring a family law attorney on retainer in order to ensure that they are going to be there to work for you as needed.

I owned property before my marriage that increased substantially in value during my marriage. During the divorce, is my wife entitled to any of the money I’ve made on that property?
In any divorce involving a division of property in the state, property will have to be classified as “community” or “separate” property. Community property is that which is acquired during the marriage; the courts will attempt to divide assets and debts as equitably as possible. Typically, any assets that were obtained prior to the marriage remain separate and are exempt from division in a divorce. However, for a non-community ruling to stand, there cannot have been any mixing or co-mingling of that property during the marriage. Keep in mind that division of property can be complicated and sometimes difficult. The court may ultimately have to determine what assets and debts are defined as either community or separate property.

I live in Austin. Is there a residency requirement to filing for divorce in Texas?
The state has laws regarding eligibility requirements for filing a divorce. There are two basic residency requirements that you need to be aware of when filing for a divorce in any Texas county. First, you must have resided in the state for the last six months, dating back from the date that you are filing. Second, you must have been a resident of the county in which you are filing in for a period of 90 days.

In order to prevent your divorce case from being dismissed by the court, you want to make sure that you have met these residency requirements. One of the most common misconceptions that people have is that they need to get their divorce in the state where the marriage began. This is not the case, as most divorce cases are filed in the county where the couple is living.