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Frequently Asked Questions

The information and links provided below are to be used for general information purposes only and should not be relied upon as a substitute for legal advice.  If you are facing a legal problem you should seek competent legal counsel.

Divorce

• What is the process for getting a divorce?

All divorces start with the filing of a Petition for Divorce. They all end in a Decree of Divorce. People have many options from which to choose in getting from Petition to Decree. See below, for a general description of the uncontested (agreed), contested (not agreed), and litigated divorce.

Uncontested Divorce – Some people are able to sit down at the kitchen table, so to speak, and work out their own issues of property, debt division, and children issues. This is the fastest and least costly method to do a divorce. It doesn't work for everyone though. Sometimes the emotional issues or the property issues are too complex to work out one on one. Also, many times one person has been controlled throughout the marriage and they do not want it to also happen in the divorce proceeding. You need to ask yourself before signing anything on your own and without proper legal advice; ”Can I live with this agreement?“

Contested or litigated case – The far end of the spectrum is the contested or litigated case which is usually started with one spouse filing for divorce, possibly on fault grounds. The other spouse is served with notice of a temporary hearing. Spouses who are served usually become defensive and act in a manner that they feel protects their interests which they perceive being attached.

A court hearing is held in approximately 20 days at which hearing the court, if the parties cannot agree, will make temporary orders such as who lives where, who pays what bills, who sees the children when. The case then proceeds on with information gathered and at some point the parties and their attorneys will go to mediation. If the case is not resolved in mediation a judge will make a decision at final trial. This could take 3-15 months and/or longer. Depends on the parties.

Each case is different. Discuss your situation and facts with your attorney.

• What are the grounds for dissolution of marriage?

A divorce may be granted on one or more "fault" or "no fault" grounds expressly set out in the Texas Family Code. Most divorces are founded on the no-fault grounds of "insupportability" (i.e. incompatibility), which can be granted to either spouse if that spouse feels that the marriage has become insupportable because of discord or conflict in personalities which makes any reasonable experience of reconciliation impossible.

"Fault" grounds for divorce include adultery or cruel treatment. In that a court may consider "fault in the breakup of a marriage as a factor in deciding how to divide the property and debts, a party may also choose to plead a "fault" ground for divorce.

• What are the residency requirements in order to obtain a divorce?

At least one spouse must have been "domiciled" in Texas for six months, and a "resident" of the county where the suit is filed for ninety days, before the petition may be filed. It need not be the person filing who meets the residency requirements.

• After the divorce case is filed, how long does it take?

The case cannot be finalized until after 60 days have passed from the date that the petition was filed at the District Clerk's office.

• What is community property?

The short answer is all property acquired during marriage other than by gift or inheritance. However, due to legal concepts such as mutation and reimbursement, this answer can be much more complicated. Ask your attorney how this relates to your particular case.

Adoption

• What are the different types of adoptions available in Texas?

Texas permits both private and agency adoptions. Private adoptions are often referred to as Independent adoptions. In an agency adoption the prospective adoptive parents will apply with the agency to notify them that they have been selected to parent a particular child. The agency will locate the birth mother. The agency will then act as an intermediary between the birth parents and the adoptive couple. The agency will deal with the birth parents and make all of the arrangements to facilitate the adoption.

In a private adoption you will have to actually locate a birth mother who is willing to place her child for adoption. Although attorneys can arrange adoptions in other states, in Texas an attorney cannot locate a birth mother for adoptive parents.

• What can we pay for?

Texas law restricts the expenses adoptive parents can pay on behalf of biological parents. These restrictions apply even if the birth mother lives in a state that is more permissive in terms of payments of expenses. Adoptive parents can legally pay for medical and legal expenses relating to the adoption. You can also pay a social worker or mental health professional to provide adoption counseling. It is also legal for you to pay a fee to a licensed child-placing agency. You cannot directly pay for any living expenses on behalf of the mother.

If you are working with a birth mother who needs assistance with expenses, then you might want to consider working with an agency on a designated adoption. In a designated adoption you will pay a fee to an agency and they in turn will provide services to the birth mother. An agency can legally pay certain living expenses on behalf of the birth parents.

• What difference does it make if we are working with a birth mother from another state?

When you work with a birth mother in another state you will have to comply with the laws of both states. This means that you will need an attorney in both states. The attorneys will have to confer with each other to determine where it will be best for you to complete the legal process.

An interstate adoption also requires compliance with the Interstate Compact which is a uniform set of regulations between states. The compact basically states that you cannot bring a child from one state to another, for the purposes of adoption, without obtaining permission from the Compact Administrator. The compact requires documentation showing that the parental rights have been or can be terminated, a copy of the genetic history for a child and the home study. We advise clients that it typically takes 7-10 days to get the approval from the Compact Administrator. During this time you will not be able to return to Texas with the child.

• What is a Pre-Adoptive Home Screening?

A pre-adoptive home screening is a report that is prepared by a licensed social worker with experience with adoption studies. The process will include interviews with the adoptive parents; obtaining verification of certain legal documents; obtaining letters of reference from friends and family; confirmation of your financial status; and running a criminal history and child abuse check. The report will be put in written form and submitted with the Interstate Compact packet. This report is also filed with the court that grants the termination of parental rights.

• What is an open adoption?

An open adoption is one where the adoptive parents and birth parents continue to have some type of contact with each other. Some open adoptions consist of only an exchange of names; others include provisions for on-going contact. In private adoptions it is up to the adoptive parents and the birth parents to determine the amount and type of contact that they desire to have in the future. In an agency adoption the agency will continue to act as an intermediary to facilitate future contact. Texas law does not recognize these contracts, except in limited circumstances.

• What is the legal process?

The legal process will vary depending on your personal situation. If the birth mother and the adoptive parents live in Texas, then the termination of parental rights will take place here. When the termination is granted, then the adoptive parents will be appointed as the Managing Conservators, which is the Texas term for legal guardian. Usually the termination of parental rights is granted based upon the consent of birth parents.

The termination of parental rights is usually done within a short period of time. Your petition for adoption cannot be finalized until the child has been in your possession for six months. At the time of the adoption you must present the court with a social study, a genetic history, and the result of a criminal history report.

Custody

• Anger Control

It is important to control your behavior, especially anger towards the other parent. This is good parenting on your part and tactically, it is good for your case. Custody litigation is often emotional and quite often results in displays of anger by one or both parties. Displays of anger can make you look bad in front of professionals evaluating your case and the Judge hearing it. Cases have been harmed and sometimes destroyed by the client displaying anger toward the other parent or talking about the other parent in an angry manner to relatives, friends or neighbors. This also applies to boyfriends / girlfriends of either parent. Act like an adult and control yourself. If provoked, walk away.

• Romantic and Sexual Behavior

Having a boyfriend / girlfriend during a custody action can cause problems for you. Is having a boyfriend / girlfriend an absolute detriment to winning a custody action? No. Is it a good idea? Probably not. Can it harm your case? Maybe. Children are under enough stress as it is during this type of litigation. They do not need more. They need your full attention and love. Children do not share; they need security; and other relationships often threaten that. The reasons not to have another relationship during a custody action are almost endless. Most social workers, psychologists and Judges are very conservative people. You need to consider what they will think.

You should put your children and your case first and your social life second. “Well they are doing it too.” Inappropriate behavior by one party does not justify inappropriate behavior by another. The other parent's inappropriate behavior could be good for your case. In most cases, the other parent's boyfriend / girlfriend is actually doing you a favor. Behave yourself appropriately as a mother or father and do not allow the behavior of someone to else dictate how you behave.

• Privacy and Secrecy

We are dealing with private matters done in private. They should stay that way. What you discuss with your attorney, and what they discuss with you, is protected by attorney client privilege. Your private matters and your discussions with your attorney should not be shared with anyone. Do Not trust your private matters and secrets with anyone other than your attorney. Unfortunately most times that includes your family and always includes friends, co-works and neighbors. Once you start talking your private matters are no longer private and they will come out.

• Taping Telephone Conversations

In Texas, it is a felony to tape a telephone conversation to which you are not a party. You cannot even bug your telephone in your own home. A statement knowingly made to a telephone answering machine is an exception to this rule. You can tape a telephone conversation to which you are a party (meaning that you are a participant), but be careful. Always assume that the other parent is taping your calls. Don't say something out of anger or to hurt the other parent.

• Parent-Child Telephone Calls

Children should be able to talk to the other parent privately. You should NOT monitor such calls or deny them. Does this mean that the other parent should call every day? No, but a reasonable number of calls should be allowed and you should allow your child some privacy during these calls.

• Illegal Drug Use and Drinking

Illegal drug use is always detrimental to your custody case and while social drinking may not be a problem, it should be kept to a minimum. Illegal drug use and excessive consumption of alcohol is not a sign of good parenting. This behavior is immature and selfish. If you are not impressed with this line of reasoning, you should remember that the people who will be evaluating you and judging you are not "cool dudes". Whether you like it or not, their opinions are going to decide this case, not yours.

• Recovering Addicts and Alcoholics

The past behavior of a recovering substance abuser is "grist for the mill" (potential source of advantage) in a custody case and obviously detrimental. However, true recovery is positive and custody has been obtained for parents who have demonstrated that they are actively recovering from substance abuse. Unfortunately, time is the only test of recovery and a short period of time "on the wagon" does not prove much. The longer the period of time in sobriety, the better. Active participations in AA or NA is a positive factor. The failure to participate may be used against you. Remember, most of the people who evaluate your case or judge it are very intelligent and understand and appreciate active involvement in these organizations. They will question recovery without these support groups.

• Sexual Abuse and Child Abuse Allegations

Abuse of a child is real and happens all too frequently in our society. It is also a false allegation that is used to get the other party in custody litigation. Case workers at Child Protective Services look for false allegations during custody litigation. At the same time, parents, especially fathers and husbands of women in custody litigations, should be wary of any behavior that could be misinterpreted as sexual abuse of a child. Women should remember that they are not immune from such allegations as well. Appropriate behavior and dress should always be maintained. Children should sleep in their own beds. Smart fathers do not give daughters baths. Spanking should be minimal, if at all. The list of cautionary behavior is endless. The best advice for persons in custody litigation is to think defensively and use common sense.

• Psychiatric Problems and Counseling

Past psychiatric problems and suicide attempts are closely examined in custody litigation. You cannot hide these problems and it is foolish to try. The best method to confront a past history of psychiatric or emotional problems is effective treatment. Failure to treat a problem is definitely harmful and treatment deemed successful could negate the problem. Most clients could use counseling and counseling is seldom a negative in custody litigation. Cases have been lost because of clients' behavior and refusal to seek counseling; however cases are not lost because a client is in counseling. The past behavior may be so extreme that the counseling cannot overcome it, but it is not the counseling that causes the adverse decision. Counseling is generally deemed a positive by the professionals evaluating a custody case and judges deciding it.

• Types of Child Custody Arrangements

There are two types of custody arrangements: Sole Managing Conservatorship; and Joint Managing Conservatorship. Sole Managing Conservatorship is where one (1) parent is selected as the parent who will make all decisions relative to the children (Managing Conservator) and the other parent is allowed visitation with the children (Possessory Conservator). Joint Managing Conservatorship is where certain parenting powers and duties can be shared, although the Court normally appoints one parent as the parent who has primary possession of the children and the right to select where they live and what schools they attend. Joint Managing Conservatorship is preferred by the law at this time and unless there is a problem with the parent who will not have primary possession of the children, it will often be granted. Often, there is no difference between the two types and Joint Managing Conservatorship is the current politically correct- feel good term of choice.

• Joint Managing Conservatorship and Split Possession

Joint Managing Conservatorship can mean fifty percent (50%) possession, but it seldom does. Many psychologists believe that such arrangements are harmful to the children. In many cases, the parent who does not have primary possession in a Joint Managing Conservatorship only receives the visitation in the Standard Visitation Schedule. Understand that Orders can be flexible if visitations and communication is well between the parents and/or parties.

• Visitation

Texas has a Standard Visitation Schedule which presumed to be the minimum amount of visitation allowed for a child three (3) years of age or older. A parent who wants to restrict visitation to less than the Standard Visitation Schedule has to show the Court why visitation should be restricted. The Court can also grant more visitation than the schedule allows. Your attorney has a copy of the Standard Visitation Schedule which can be given to you.

• Child Interviews and Affidavits

Judges can interview children in their chambers and social workers doing evaluations interview children with and without the parents present. Children, twelve (12) years of age and older, can sign an Affidavit of Election designating the parent with whom they wish to live and this is given a unfortunate amount of weight in custody litigation. Almost all children try to manipulate their parents in custody litigation. Young children tend to think defensively and tell everyone what they want to hear. They know that they are small and weak and they try to please everyone. Teenagers are often selfish and even treacherous. Child interviews are hard to predict and impossible to control. Affidavits of Election are difficult to overcome and with older children, it becomes almost impossible. Teenagers often elect to live with a parent who does not control their behavior and bribes them with material possessions. Many times, this is not preventable.

• Gender Equality and Primary Parenting

The law says that gender is not an issue of custody litigation and that is true up to the point of human behavior. The true issue in custody litigation is parenting and especially for young children, everyone is looking to be the primary parent even if the motive is revenge or "one up." In most families, the mother fulfills that role and for that reason, mother is awarded primary possession of the children most of the time. Does that mean a father cannot get custody? No. It depends on how the two individuals involved in the case behave and not every couple behaves in a traditional manner. Professional women often complain that the courts discriminate against them because they chose to become a professional. Generally, that is not true, but when they place their profession above their role as mother, they lose the advantage that a woman who sees herself as a "mother first" often has. Remember, the issue is parenting and not gender, but gender often dictates the role played by each parent in the family.

• Parents are Equal Without a Court Order

Until the Court issues an order designating one parent as the Sole Managing Conservator or Joint Managing Conservator with Primary Possession, both parents are considered equal. Until a court order is entered, both parents have equal rights and either parent can take possession of the children.

• Residency Restriction

A court cannot restrict the residence of an adult American citizen, but it can restrict the residency of a child, subject to the orders of the court. The Texas Family Code encourages restricting the residence of a child so that the visiting parent's rights to access is protected, but the decisions is one of policy of the court to which you are assigned and we have no choice over the assignment. Many Judges, especially the Family Law Judges in Dallas County, are imposing residency restrictions on the child as long as the visiting parent lives within the restricted area. This can be overcome under the right circumstances, but the burden is on the parent trying to move away and it is a heavy burden. Without an agreement from the other parent to the contrary, you should plan on residency restriction if that is the policy of the court to which you are assigned.

• Calculation of Child Support

Child Support is calculated based upon the earnings of the parent who does not have primary possession and other funds available to that parent and the number of children that parent has to support. The court can vary from the specific formula if the child as special problems or needs. In the vast majority of cases, child support is calculated based upon a formula in the Family Code, which is the amount of net earnings (after deducting taxes, Social Security, Medicare, and the cost of medical insurance coverage for children) available to the parent who does not have primary possession; the number of children being supported in this case; and the number of other children for whom that parent has support responsibilities.

• Overtime Wages and Child Support

Overtime wages and bonuses are considered in calculating child support.

• Medical Insurance Coverage for Children

The parent paying child support is responsible for providing medical insurance coverage for the children. If the other parent provides the medical insurance coverage, then the child support amount is increased by the amount of the cost of the insurance.

• Payment of Uninsured Medical Bills

Normally, uninsured medical bills are paid 50/50 by the parents.

• Non-Parents and Child Support

Only biological and adoptive parents are required to support children. Other persons who have custody can receive support, but it they lose custody, they cannot be made to pay support.

• Non-Payment of Child Support

Support orders are enforced by contempt. A Motion for Contempt must be filed and a hearing must be held. In most Texas court, the non-paying parent in often jailed for non-payment of support.

• Denial of Visitation

Visitation orders are also enforced by contempt. While some Judges are not as strict with visitation orders as they are in support orders, most are and parents are jailed for denying visitation.

• Child Support and Visitation Are Not Linked
• Garnishment of Wages to Collect Child Support

The law requires a Wage Withholding Order to be signed at the time any support order is signed. This does not mean that the order has to be issued upon the employer, but "wage withholding" (commonly referred to as "wage garnishment") is recommended for both sides.

• Looking Good to Your Attorney

The biggest mistake a client can make is to try to look good to his/her attorney. Clients sometimes believe that they need to impress their attorney and that they can hide their flaws. Attorneys work for the clients who hire them. You do not have to impress them. Since you were at least at one time intimately involved with the other party in a custody action, they usually know your flaws. If you conceal your flaws from your attorney, he/she is the only person usually who does not know them. Therefore, it is very important to reveal everything possible to your attorney even if it is embarrassing to you. Some obvious points to consider are:

a. Sexual Misbehavior
b. Criminal History
c. Drug and alcohol abuse
d. Psychiatric history and suicide attempts
e. History of lying and deception
f. Allegations of or actual family violence
g. Amount of involvement with children
h. Employment problems
i. Negative Family History
j. Associations with known criminals (the company you keep)

General Information