Does Texas have a legal separation?
Texas does not allow for you to file for a legal separation, only for a divorce.
How is the divorce proceeding started?
A divorce is a lawsuit. Thus, a petition must be filed and the required filing fees must be paid.
Thereafter your spouse must be notified of the divorce in accordance with the law.
Does my spouse have to be served?
Generally, a sheriff, constable, or a private process server performs service of process.
However, spouses may sign a Waiver of Service of Citation. This document is signed in the
presence of a Notary Public after the divorce petition is filed and verifies that your spouse
knows a divorce is pending, has received a copy of the petition, and waives the opportunity to
What is an uncontested divorce?
An uncontested divorce occurs when the married couple agrees on each and every aspect of the
divorce, including among other things: division of the martial estate including assets and debts,
conservatorship, possession and access, and child support.
How quickly can I get a divorce?
Presuming that the divorce is uncontested, there is a minimum sixty-day waiting period from
the date the divorce suit is filed with the Clerk until the date the Court can grant the divorce.
What is a Temporary Restraining Order?
A temporary restraining order, or T.R.O., is a Court order issued normally without notice to
your spouse. Although temporary restraining orders may address a myriad of items, they
generally are issued to protect the parties, their children, and their property. Temporary
restraining orders are effective for a limited period of time, until the Court holds a temporary
order hearing. They are served upon your spouse, along with the date to appear at the
temporary order hearing. The Court will then decide whether or not the temporary restraining
order will become a temporary injunction and other orders pertaining to the parties, their
children, and their property may be made.
What are Temporary Orders?
Very soon after filing for divorce, you may be able to obtain temporary orders from the Court
to cover interim issues including but not limited to a temporary award of property,
conservatorship, possession and access of the children, temporary child support, and/or
temporary spousal support. The temporary orders remains in effect until changed by the Court
or otherwise superseded by the final decree of divorce.
How do I get custody of my children?
The answer to this question depends on the facts of your case. However, in determining
conservatorship, the Courts consider the qualifications of the parties without regard to their
marital status, their sex, or the sex of the child.
Does joint conservatorship mean each parent will have equal time with their children?
Not always. Joint conservatorship normally means the sharing of parental rights and duties, not
necessarily equal time.
What will the visitation schedule be like?
The Texas Family Code contains what’s commonly referred to as the "Standard Possession
Order." Generally, a Standard Possession Order provides that the parent with whom the
children do not primarily live have visitation on the 1st, 3rd and 5th weekends of each month,
Thursday evenings during the school year, specific alternating holidays, and generally thirty
days or an extended time during the summer. Additional options such as picking the child up
from school when dismissed at the beginning of each period of possession and returning the
child to school on the next school morning at the end of periods of possession are available. By
way of example, and during the regular school term - a parent who elects to have a fully
expanded Standard Possession Order could pick up their child from school on a Thursday,
return their child to school the immediately follow Friday, pick up their child on that same
Friday on their ordered weekend and return the child to school the immediately following
Monday. Parents may also agree to a different schedule all together as long as it is enforceable
and approved by the Court.
Will I have to pay child support, and if so how much?
The spouse who does not have primary custody of the children will, in most cases, pay child
support. Except for special circumstances, child support is determined by a formula contained
in the Texas Family Code. Child support is commonly calculated by applying a percentage,
determined by the number of children being supported, to the obligor’s net resources.
What is a modification?
Child support, provisions for conservatorship, and provisions for possession and access may
be changed. To start this process a motion must be filed with the Court that rendered or
granted the order that you are now attempting to have modified.
The other party is not obeying an order of the Court. What do I do?
You may file a motion for enforcement complaining to the Court which provisions of its Order
have been violated. This motion is served upon the other party along with a date to appear at
Court. Depending on the type of violation, the Court could fine or jail the non-obeying party,
or order reimbursement of attorneys' fees expended in seeking compliance.
What is going to happen to our property?
When married couples get a divorce in Texas, the assets and debts that they accumulated during
their marriage (this being community property) are divided by the Court. In making the
division the Court divides the community property in a just and right manner, which means that
the Court is to strive for a fair and equitable division of the property based upon and having a
due regard for a multitude of factors. A non-exhaustive grouping of factors considered in
dividing the assets and debts include a spouses disparity of income and earning capacity, fault
in breakup of the marriage, length of the marriage, fraud and waste of community assets, tax
consequences in the division, size of a spouse's separate estate, health of the spouses, education
of the spouses, and need for future support.
What if I owned the property or business before marriage or I inherited the property
during my marriage?
The Court is not allowed to divide or incorrectly award property that one spouse acquired prior
to marriage with his or her own funds, inheritances, certain portions of personal injury awards,
or businesses owned by the spouse before marriage (this is separate property).
Frequently Asked Questions - Divorce
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ROBERT D. FRANKS
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for purposes of educating the public. Neither this website nor the
information contained herein should be utilized as a substitution
or supplementation to services that could be provided by a
licensed attorney. It is recommended that all persons facing a
legal problem contact a competent attorney to represent them.
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