FAQ's - Divorce Attorney San Antonio TX Answers

How do I get divorced?

You must get a Court order granting your divorce. There is no such thing as an informal divorce. A request must be filed with the Court before a divorce can be granted. If there are children of the marriage, the request for divorce must include a request that the Court make orders concerning the custody, visitation, and support of any child of the marriage. The child portion of the divorce case is known as a “Suit Affecting the Parent-Child Relationship” or “SAPCR”.

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I wasn’t married in Texas. Can I get divorced here?

Yes. A divorce can be filed in the county where either spouse has resided for 90 days before filing if both spouses have been domiciled in Texas for the past 6 months; or if only one spouse is domiciled in Texas, then either where the filing spouse has lived for the 90 days before filing suit or where the responding spouse resides, if the responding spouse is the party that is domiciled in Texas. A spouse is considered domiciled in Texas when he/she lives in Texas with the intention of making it a fixed and permanent home.

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I never had a formal marriage ceremony. Am I actually married?

It depends. Texas recognizes an informal, or common law marriage, by either: 1) an executed declaration of informal marriage form obtained from and recorded with the county clerk’s office; or 2) when the parties agree to be married and after the agreement; they live together in Texas; and there represent to others that they are married.

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Can I get legally separated instead of divorced?

No. In Texas, you will be considered married until you get legally divorced.

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How long will it take to get divorced?

There is a 60-day waiting period between the time the divorce is filed and the time a court order granting the divorce can be signed. The waiting period can be waived if there has been a finding of family violence against the responding spouse. The length of your case will depend on a variety of factors, but mainly on the number and type of issues involved and the conduct of and level of amicability between the parties. The more issues the parties can quickly agree to, the quicker the case can be finalized.

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Do I need specific grounds to get divorced?

No. Texas is a no-fault state, and you can get divorced for a specific reason (e.g., fault of a party) or for no reason at all. However, because the Court is required to make a fair and equitable property division, fault may be considered when the Court divides your property. Common fault grounds include adultery and cruelty. If you believe your spouse is at fault for breaking up your marriage, make sure to disclose to your family law attorney all of the facts that support the other party’s fault in the breakup of the marriage.

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Does my spouse have to agree to the divorce?

No. A spouse only needs to have notice of the divorce, which is done through service of the citation (i.e., notice of the lawsuit) and petition (i.e., request) for divorce. If your spouse does not agree with the divorce or how an issue should be addressed, such as the division of property or the custody and care of the children, you can request a trial before a judge, or depending on the issues, a jury. It is highly recommended that you hire an experienced and knowledgeable attorney to represent you if you have reason to believe that you and your spouse will be unable to reach an agreement on all issues in your divorce.

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What decisions will be made about my children?

A court order should address any issue necessary to protect the best interest of the child. Common issues concern conservatorship, possession and access, and child support. These topics are described in further detail below. You should let your attorney know if there are any special issues that should be addressed.

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Conservatorship (AKA Legal Custody)

Conservatorship orders address and allocate between parents or caretakers rights, decision making authority, and duties as they relate to the child. For example, a court order could address such issues as where the child will live and go to school. This also includes who will have the right to possession and access.

Unless it is not in the child’s best interest, the Court will generally order a joint managing conservatorship. A joint managing conservatorship allows parents or caretakers to share in the rights and duties of raising the child. If your case is decided by a Court rather than by agreement of the parties, the right to determine the child’s primary residence will need to be allocated to one conservator, who will then become the child’s primary joint managing conservator.

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Possession and Access (AKA Physical Custody)

A Court order should address and allocate a visitation schedule between conservators. Orders can also be created to set access terms, for example, periods of electronic or telephone communication. Generally, the conservator not named the primary joint managing conservator will have a possession and access schedule. For children over the age of 3, Texas law assumes that a Standard Possession Order is in the child’s best interest. Courts are not required to order a Standard Possession Order if the schedule is not in the child’s best interest or is unworkable for some reason (e.g., the visiting parent’s work schedule makes it difficult or impossible to have visits with their child on the weekends). For children under the age of 3, a court will look to a variety of factors when determining an appropriate schedule, including, but not limited to: the child’s physical, medical, behavioral, and developmental needs; the caregiving provided to the child to date; the child’s need for routine; and the effect on the child that may result from separation from either caretaker.

For conservators who live within 50 miles of each other, and for conservators who live within 100 miles of each other and have elected to maximize their time under the Standard Possession Order, generally the noncustodial parent’s visitation schedule will be:

• During the school year, on the 1st, 3rd, and 5th weekends of the month, beginning at the time school is dismissed on Friday and ending at the time school resumes on the following Monday;
  • For parents who live over 100 miles apart, the visiting parent can select to have visits throughout the year beginning on Friday at 6:00 p.m. and ending Sunday at 6:00 p.m. on either the 1st, 3rd, or 5th weekends of each month OR one weekend per month.
• Every Thursday during the school year beginning at time school is dismissed on Thursday and ending at the time school resumes on Friday;
  • For parents who live over 100 miles apart, there is no provision for Thursday visitation.
• For Friday holidays during the school year, possession begins when school is dismissed on Thursdays; and for Monday holidays during the school year, possession ends at 8:00 a.m. on the following Tuesday;
  • For parents who live over 100 miles apart, the visiting parent can elect this provision to maximize their weekend visitation.
• Spring break in even-numbered years beginning at the time school is dismissed and ending at 6:00 p.m. on the day before school resumes after Spring Break;
  • For parents who live over 100 miles apart, the visiting parent has Spring Break every year and can elect to start visitation when the child’s school is dismissed to maximize their Spring Break visitation.
• Thanksgiving holiday in odd-numbered years beginning at the time school is dismissed and ending at 6:00 p.m. on the day before school resumes after Thanksgiving;
  • For parents who live over 100 miles apart, the visiting parent can elect to start visitation when the child’s school is dismissed to maximize their Thanksgiving visitation.
• Christmas holiday in odd numbered years from 12:00 pm on December 28 until 6:00 p.m. on the day before school resumes after the holiday;
  • For parents who live over 100 miles apart, the visiting parent can elect to start visitation when the child’s school is dismissed to maximize their Christmas visitation.
• Christmas holiday in odd numbered years from 12:00 pm on December 28 until 6:00 p.m. on the day before school resumes after the holiday;
  • There is no change in this schedule for parents who live over 100 miles apart.
• 30 days in the summer;
  • For parents who live over 100 miles apart, the visiting parent has 42 days in the summer.
• For the parent who does not have the child on his/her birthday, from 6:00 p.m. – 8:00 p.m.; and
• For the parent who does not have the child on his/her birthday, from 6:00 p.m. – 8:00 p.m.; and
  • There is no change in this schedule when parents live over 100 miles apart.
• Mother’s Day/Father’s Day weekend depending on who is exercising the standard possession schedule.
  • Regardless of the distance between parents, the parent-centric holiday time is carved out as:
    • Mothers Day weekend: beginning when the child’s school is dismissed before Mother’s Day and ending when school resumes on the following Monday; and
    • Fathers Day weekend: beginning at 6:00 p.m. on the Friday before Father’s Day and ending at 8:00 a.m. on the following Monday.
  • The court order can also alternate Mother’s Day and Father’s Day weekend every year for same sex co-parents.

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Child and Medical Support

The court order should contain terms for child support payments and coverage for and payment of health and dental insurance. Generally, the person obligated to pay support (“Obligor”) will be the noncustodial (i.e., visiting) parent. The Obligor will also be held responsible for covering the child on insurance or reimbursing the person receiving support (“Obligee”) for the cost of the insurance premiums.

In most cases, the amount of child support ordered will be determined by the Texas Child Support guidelines, which configure a child support amount based on the Obligor’s net resources and the number of children whom the Obligor is obligated to support. You can determine a rough estimate of the Obligor’s child support amount here: Monthly Child Support Calculator | Office of The Attorney General – Texas.

“Net Resources” = All income received annually, excluding certain income, like TANF benefits (Temporary Assistance for Needy Families) and a spouse’s income LESS:

1. Taxes (federal and state income taxes and social security taxes);

2. Nondiscretionary retirement contributions if the Obligor doesn’t pay social security taxes;

3. Union dues; and

4. Cost of health and dental insurance for children.

The guidelines apply to an Obligor’s net resources up to $9,200.00/month. If an Obligor makes more than $9,200.00/month, the Texas Child Support guidelines apply up to $9,200.00. The child support amount can then be adjusted based on whether the child’s needs are greater than the amount of support to be ordered under the guidelines.

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