FAQ's - Divorce Attorney San Antonio TX Answers

Know Your Rights

How do I get divorced?

You must get a Court order granting your 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 care and custody of any child of the marriage. This type of request 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.  A spouse is considered to be domiciled in Texas when the spouse 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 on your particular circumstances. 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 when 2) a man and women agree to be married and after the agreement, they live together in Texas and there represent to others that they are married.

On June 26, 2015, the US Supreme Court ruled that same-sex couples have a right to marry in all states and that each state must recognize same-sex marriages performed in another state.  Therefore, the gender specific terms in the common law marriage statute is likely to be interpreted as “parties” without regard to gender.

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Can I get legally separated instead of divorced?

No. In Texas, you will be considered married until you get 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 any case will depend on a lot of factors, but mainly on the number and type of issues involved and the conduct of 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 without regard to whether there is any fault.  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 his/her fault.

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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 and petition for divorce.  If your spouse does not agree with the divorce or an issue in the case, for example, the division of property or the custody and care of the children, you can request a hearing or trial before a judge, or with regard to specific issues, a jury. It is highly recommended that you hire an attorney to represent you if you have reason to believe that you and your spouse will be unable to reach an agreement.

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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. More often than not, 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 schedule is in the child’s best interest. 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 100 miles of each other, a standard possession schedule generally looks like this:

  • 1st, 3rd, and 5th weekend (if any) of the month beginning Friday at 6:00 p.m. and ending on Sunday at 6:00 p.m.;
  • Weekends during the school year that have a Friday holiday start at 6:00 p.m. on Thursday;
  • Weekends during the school year that have a Monday holiday end at 6:00 p.m. on Monday;
  • Thursday during the school year from 6:00 p.m. – 8:00 p.m.;
  • Spring break in even-numbered years beginning at 6:00 p.m. on the day school is dismissed and ending at 6:00 p.m. on the day before school resumes after the holiday;
  • Thanksgiving holiday in odd-numbered years from 6:00 p.m. on the day school is dismissed and ending at 6:00 p.m. on the day before school resumes after the holiday;
  • Christmas holiday in even-numbered years from 6:00 p.m. on the day school is dismissed and ending at 12:00 p.m. on December 28;
  • 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;
  • 30 days in the summer;
  • For the conservator who does not have the child on his/her birthday, from 6:00 p.m. – 8:00 p.m.; and
  • Mother’s Day/Father’s Day weekend depending on who is exercising the standard possession schedule.

For conservators who live more than 100 miles of each other, the schedule is generally the same as for conservators who live within 100 miles of each other except that the person exercising the schedule can opt to have possession one weekend per month instead of 1st, 3rd, and 5th weekends, and is also entitled to have possession every year for spring break and 42 days in the summer.

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Child and Medical Support

A Court order should address any issue related to child and medical support, collectively known as “child support”.  An order should address who will pay support and provide health insurance for the child, and the manner in which support and insurance will be provided.  Generally, the party not named primary joint managing conservator (“Obligor”) will be ordered to pay child support to the primary conservator (“Obligee”).

In most cases, the amount of child support ordered will be determined by the Texas guideline child support table set forth  below.  This is calculated by applying the applicable percentage identified in the table to the Obligor’s monthly net resource (annual net resources/12).

“Net Resources” = All income received annually (excluding certain income, like Welfare benefits and a spouse’s income) LESS:

1. Taxes (federal income taxes, social security taxes);

2. Nondiscretionary retirement contributions;

3. Union dues; and

4. Cost of health insurance for children

The guidelines above apply to net resources up to $8,550.00/month. If an Obligor makes more than $8,550.00/month, the guidelines apply up to $8,550.00. The child support amount can then be adjusted based on whether the child’s needs are greater than the amount of support.

It is important to remember that the typical assumptions regarding joint managing conservatorship, a standard possession schedule, and child support may not apply in your case.  You should make sure your attorney has a complete understanding of the facts and circumstances to be able to advise you appropriately and seek orders tailored to fit your particular needs.

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