Divorce is always difficult. Regardless of who decides to file for divorce, you or your spouse, it is very important that you seek the assistance of a family law attorney. Consulting a knowledgeable family law attorney early is one of the best ways to preserve your own rights and interests. A divorce is a method of terminating a marriage contract. Legally, a divorce will give each person the right to marry someone else, divide the couple’s assets and debts, and determine the future care and custody of their children.
Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:
1) Spousal support
2) Property division; and, if there are children
3) Custody
4) Visitation
5) Child support
If a couple can agree on all five of these issues in writing, they will be granted an uncontested divorce and avoid litigation. Conversely, if there is disagreement on any of the basic issues, a contested divorce exists.
Petition – The filing of a petition formally begins divorce proceedings.
Summons & Response – Notice to your spouse about your intention to pursue a divorce. The response is your spouse’s acknowledgment that the divorce has begun.
Hearings & Temporary Orders – In some situations, issues need to be temporarily resolved before the final divorce agreement is reached or ordered by the court. For example, if a couple cannot agree on temporary child custody or child support, they may ask the judge, during a hearing, to decide. Temporary orders generally remain in effect until the final decision is made at the end of the divorce process.
Discovery – The period when each side gathers information in support of their legal arguments. It is an important phase in contested divorces.
Trial – A court appearance where the case will be decided. The trial may include witnesses, friends, financial experts, psychologists, as well as other types of evidence including financial records.
Judgment – The final decision is a judgment, not a verdict. It is simply the judge’s rulings on all the issues in question during the trial, such as custody, visitation, and support and property division.
After you file suit for divorce, you may request certain types of temporary orders that either permit or prohibit your spouse from doing certain things, such as acting violently, unnecessarily spending money, disconnecting the utilities, and acting unreasonably.
Some types of requested orders may be granted immediately upon request and without any type of court hearing. These orders are called temporary, or ex parte, orders. A temporary restraining order prohibits threatening, abusive, or unreasonable conduct towards you, your children, and your property. These orders, in essence, order your spouse to “behave” until a court hearing can be held. A hearing will then be held within 14 days after the temporary restraining order has been signed.
Some orders can only be granted after a court hearing has been conducted and both parties have had the opportunity to be present in court and to present evidence. For instance, after a hearing the court may grant:
1) Temporary exclusive use of the residence;
2) Temporary exclusive use of the car and other personal property;
3) Temporary child support;
4) Temporary child conservatorship; and
5) Restrictions and prohibitions on spending available cash & assets
These orders will remain in effect until the Final Decree of Divorce, and will help to protect you, your children, and your property.
Mediation – Mediation is an alternative to litigation that can be less expensive and less stressful for divorcing couples and their children. In the mediation process, the couple works with a trained mediator to reach agreement on contested issues.
Collaborative Divorce – Collaborative divorce is a relatively new process where each party and their attorneys work together to resolve disputes through negotiation and compromise. This process requires an up-front commitment to reach an agreement, and if either attorney moves the case toward litigation, both attorneys will be disqualified from representing their clients in the litigation.
Texas uses the community property system to divide marital assets between divorcing spouses. Community property is usually divided evenly between the spouses at the time of the divorce and separate property is assigned to the spouse that owns it.
Community property is everything that a husband and wife own, acquire, or earn together from the start of their marriage until the date they separate. Similarly, any debt acquired during the course of the marriage will be deemed to be community debt without consideration of which spouse actually incurred it.
Separate property is anything the husband or wife owns separately, such as property owned before the marriage, and gifts or inheritances received during the marriage.
There may also be instances where couples mix separate and community property. Because classification of property and its division are complex legal issues, you will need the advice and assistance of a family law attorney to protect your property interests.
In Texas, the first priority in a child custody case is the best interest of the child.
In the absence of family violence, sexual abuse, or other extenuating circumstances, it is advisable for parents to agree to appropriate custody arrangements rather than have a court do it for them. A custody fight involves a great deal of time and emotional and financial expense. In some instances, the child can be damaged more by the court action than the worst trait of the other parent.
Obviously, there are going to be situations where a custody fight is the only option. Discuss your concerns and options with your attorney before making the decision to take this issue to trial.
Once a decision is made concerning conservatorship, provisions for periods of possession are generally determined by guidelines enacted by the Texas Legislature commonly called the “standard possession order.”
You need to review these guidelines for possible modifications to fit your family’s needs.
Texas law provides a statutory calculation to determine an amount for monthly child support. Generally, child support is set at 20% of net income for the first child, 25% for the next child, and so on. These percentages apply to a person’s net monthly income (gross income minus statutory deductions). Additionally, these percentages apply only to the first $8,550.00 of the person’s net income. Any child support ordered above this amount is based on a child’s proven needs.
The question of how to determine net monthly income is sometimes difficult if the obligor (the person who will be paying support) has been unemployed or changes jobs frequently. Generally, the court will average a person’s monthly income over a period of time if there have been fluctuations in the amount of income a person receives. Additionally, if a person is unemployed at the time a child support order is established the Court will base child support on the federal minimum wage at 40 hours a week.
The courts and our society impose an absolute duty to financially support one’s children. When special circumstances exist, there is not a hard and fast rule as to how to calculate child support.
If you are paying child support and your income changes so that you cannot afford to pay your current monthly obligation, or if you believe that you are receiving too little in child support and cannot take care of your children, contact an attorney for help.
We also handle other common family issues related to visitation rights, adoption, guardianship, state child protection, and domestic violence. Child support payments, spousal support payments, and property divisions are likewise included.
Protective orders are designed to protect you when family violence has occurred and is likely to occur in the future.
Family violence is defined as an act by a member of a family or household against another member of the family or household that is intended to result in physical harm or is a threat that is intended to result in physical harm or is a threat that reasonably places the member in fear of imminent physical harm. This definition has been recently expanded to include dating violence.
When requesting a protective order the court may grant a temporary, or ex parte, order without a hearing if the court finds a clear and present danger that family violence has occurred or will occur in the future. A temporary protective order will protect you and your family until a hearing is held within 20 days.
After notice to the responding party and a hearing, a protective order that is granted by the court will last for up to two years. Protective orders will prohibit the Respondent from:
1) Committing family violence;
2) Directly or indirectly communicating with a member of the family;
3) Going near your residence or place of employment;
4) Removing the children from your possession;
5) Stalking
6) Engaging in conduct likely to harass, annoy, alarm, abuse, torment, or embarrass
7) Possessing a firearm.
A premarital agreement, commonly known as a prenuptial agreement, is an agreement between two people prior to marriage. It is a contractual means of dividing property in the event of a divorce. If you and your prospective spouse are interested in entering into a premarital agreement, do not sign or attempt to write a premarital agreement without the help of an experienced family law attorney.
© 2025 · Law Office of Michelle R. Goodwin.