Divorce
1. How much does a divorce cost?
2. How long does the divorce process take?
3. How much child support will I pay/how much child support will I receive?
4. How is custody determined? Is preference given to the mother or the father?
5. Can my spouse and I hire the same lawyer to keep our costs down?
6. What is "no fault" divorce?
7. Can I be legally separated from my spouse rather than divorced?
8. Where will the divorce be filed?
9. What is the process for divorce - how does it get started?
10. How will our property be divided?
11. What is community property?
12. What is separate property?
13. Will I receive alimony or spousal maintenance/will I have to pay alimony or spousal maintenance?
14. What is mediation?
Collaborative Law
1. What is collaborative law?
2. How do I know if the collaborative law process is right for me?
3. How much will a collaborative divorce cost?
4. How do I find a collaborative lawyer?
5. What is the difference between the collaborative law process and mediation?
6. I don’t trust my spouse. Should I still try the collaborative law process?
7. I am afraid of my spouse. Should I still try the collaborative law process?
Divorce
1. How much does a divorce cost?
The total cost for a divorce depends on a variety of circumstances, including whether there is a dispute regarding custody or child support, the complexity of the estate, and the ability of the parties to work together amicably to reach agreements outside the courtroom. Court appearances, written discovery, and depositions typically increase the overall cost of a divorce, however, they are not required in every case. Collaborative law cases are typically less expensive than contested litigation cases because the neutral communications facilitator and financial expert are generally able to work with the parties to create a parenting plan and financial plan, thereby limiting the issues of contention and reducing legal fees.
2. How long does the divorce process take?
Texas Family Code section 6.702 provides that the court may not grant a divorce before the 60th day after the date the suit was filed. Thus, the soonest a divorce can be finalized is the 61st day after the petition for divorce was filed. Most contested divorces take more than 61 days to be resolved.
3. How much child support will I pay/how much child support will I receive?
Texas Family Code chapter 154 governs child support. Child support is based on the obligor's (the parent paying child support) ability to pay. Specifically, subchapter B governs computing net resources available for payment of child support, and subchapter C establishes Child Support Guidelines based on the obligor's net resources. Section 154.125(b) provides that the court shall presumptively apply the following schedule in rendering the child support order:
- 1 Child 20% of Obligor's Net Resources
- 2 Children 25% of Obligor's Net Resources
- 3 Children 30% of Obligor's Net Resources
- 4 Children 35% of Obligor's Net Resources
- 5 Children 40% of Obligor's Net Resources
- 6+ Children Not less than the amount for 5 children
Effective September 1, 2007, the "cap" (the presumptive amount of net resources to which the statutory guidelines are to be applied) for child support was increased from $6,000 to $7,500. The $7,500 cap will be adjusted every six years as necessary to reflect inflation.
The current guidelines for child support are specifically designed to apply to situations in which the obligor's monthly net resources are not greater than $7,500. If the obligor's monthly net resources exceed $7,500, the court shall presumptively apply the percentage guidelines to the portion of the obligor's net resources that do not exceed that amount.
Additionally, the parent paying child support is also required to pay for health insurance for the child as additional child support. In the event the obligee (the parent receiving support) bears the cost of the child's health insurance, child support maybe adjusted to reimburse the obligee for this additional expense.
The court may order additional child support as appropriate depending on the income of the parties and the proven needs of the child.
If the obligor has children in more than one household, the percentage of net resources the obligor is required to pay is reduced, as established in Texas Family Code sections 154.128 and 154.129. If you or your spouse have children living in another household (for example, children from a prior relationship or marriage), be sure to advise your attorney so that child support can be properly assessed.
4. How is custody determined? Is preference given to the mother or the father?
The court considers the qualifications of the parties without regard to their marital status or to the sex of the party or child in determining conservatorship (i.e., custody) of the child. In other words, there is no preference that a child should live primarily with his/her mother or father. The best interest of the child is always the primary consideration of the court in determining the issues of conservatorship and possession of an access to the child. There is a rebuttable presumption that appointment of parents as joint managing conservators (i.e., joint custody) is in the best interest of the child. Joint managing conservatorship does not, however, require the award of equal or nearly equal periods of physical possession of and access to the child to each parent.
5. Can my spouse and I hire the same lawyer to keep our costs down?
No. It would be a conflict of interest for one lawyer to represent both spouses in a divorce.
6. What is "no fault" divorce?
The party filing for divorce does not have to specify a reason for the divorce. A "no fault" divorce maybe filed on the grounds of "insupportability," meaning that the marriage has become insupportable due to a discord or conflict of personalities that destroys the legitimate end of the marriage relationship.
7. Can I be legally separated from my spouse rather than divorced?
In Texas, there is no "legal separation." Spouses are married until the court grants the divorce. Spouses may enter a post-marital agreement to divide their assets and liabilities, but they will remain married until the court grants the divorce.
8. Where will the divorce be filed?
A divorce may be filed in Texas if either spouse has been a resident of the state for the preceding six (6) month period. The divorce may be filed in the county in which either spouse has resided for the preceding ninety (90) day period.
9. What is the process for divorce - how does it get started?
To begin the divorce process in a litigated case, a petition for divorce must be filed with the district clerk for the county where the divorce will be granted. The party filing the divorce is the "Petitioner" and the other spouse is the "Respondent." The Respondent must be served with process (i.e., served with the petition for divorce by a constable or process server authorized by the court) and given the opportunity to respond by filing appropriate pleadings with the court. Often times, a temporary orders hearing will be held a few weeks after the petition has been filed, and ultimately the case will be set for trial. While the divorce is pending, written discovery maybe exchanged, depositions may be taken, and motions may be filed on various issues, requiring court hearings.
The procedure may be different in a collaborative case because the parties may agree to file a joint petition for divorce. Under such circumstances, neither party would have to be served with process. The parties may proceed collaboratively, however, even if one party files the petition for divorce and the other is served.
10. How will our property be divided?
Texas Family Code section 7.001 provides that in a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems "just and right," having due regard for the rights of each party and any children of the marriage.
11. What is community property?
Texas Family Code section 3.002 defines community property as consisting of the property, other than the separate property, acquired by either spouse during marriage. Absent a pre-marital agreement or post-marital agreement, all income earned during marriage (including salaries, 401(k) contributions, IRAs, and employee benefits, etc.) is presumed to be community property. Similarly, interest and growth on separate property is presumed to be community property.
An asset is not always entirely community property or entirely separate property, however. It may have a mixed character, owned in different percentages by the separate and community estates. For example, one spouse may use separate property funds as the down payment on the purchase of a residence, and over the course of the marriage, community property funds may be used to pay the mortgage. Under such circumstances, the property would have mixed character.
12. What is separate property?
Texas Family Code section 3.001 defines separate property as consisting of:
- the property owned or claimed by the spouse before marriage;
- the property acquired by the spouse during marriage by gift, devise, or descent; and
- the recovery for personal injuries sustained by the spouse during marriage, except for any recovery for loss of earning capacity during marriage.
13. Will I receive alimony or spousal maintenance/will I have to pay alimony or spousal maintenance?
Texas Family Code section 8.051 provides that the court may order maintenance for either spouse only if:
- the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constituted an act of family violence and the offense occurred
- within two years before the date the petition for divorce was filed; or
- while the divorce is pending; or
- the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property to provide for the spouse's minimum reasonable needs, and the spouse seeking maintenance
- is unable to support him/herself through appropriate employment because of an incapacitating physical or mental disability;
- the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of physical or mental disability makes it necessary, taking into consideration of the needs of the child, that the spouse not be employed outside the home; or
- clearly lacks the earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs.
Alternatively, the parties may agree to "contractual alimony," whereby one spouse contractually agrees to pay alimony to the other spouse. There may be certain tax advantages to contractual alimony, making this an attractive option for some spouses.
14. What is mediation?
Mediation is a confidential settlement process in which a neutral, third-party mediator is hired to help the parties facilitate a negotiated resolution to their dispute. Mediation can be an effective tool in all manner of family law disputes. The mediator cannot force any party to make an agreement, and the mediator cannot be compelled to disclose anything said during the course of mediation at any subsequent hearing or trial. Mediation can be a half day (4 hours) or full day (8 hours), depending on the complexity of the issues. Upon its own motion or the motion of either party, the court may order the parties in a family law case to mediate in good faith, although the court cannot compel the parties to settle their dispute.
Collaborative Law FAQ
15. What is collaborative law?
Collaborative law is a new alternative dispute resolution process whereby the parties agree to use their best efforts and make a good faith attempt to resolve their disputes on an agreed basis without resorting to judicial intervention, except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties' collaborative attorneys may not serve as litigation counsel except to ask the court to approve the settlement agreement. Collaborative law is a voluntary process, and all parties to a dispute must agree to use the process. Unlike mediation, the court cannot order the parties to use the collaborative law process.
1. How do I know if the collaborative law process is right for me?
The Collaborative law process is completely voluntary. Neither party can require that the other party agree to use the process, nor can any court require the parties to use the process. When you consult with a lawyer regarding a divorce or other family law issue, talk to your lawyer about the collaborative law process and whether it would be a good option for your case.
2. How much will a collaborative divorce cost?
It is impossible to predict how much any divorce will cost. Every lawyer has his or her own fees and retainer policies, and you should address your specific concerns about the cost and payment policies with your lawyer.
3. How do I find a collaborative lawyer?
To find collaborative lawyers and other collaborative professionals in Texas, visit the Collaborative Law Institute of Texas website: www.collablawtexas.com.
To find collaborative lawyers throughout the United States, Canada, and Europe, visit the International Academy of Collaborative Practitioners’ website:
www.collaborativepractice.com.
4. What is the difference between the collaborative law process and mediation?
The collaborative law process and mediation both utilize interest-based negotiation and provide the parties an opportunity to work to resolve their dispute confidentially. There are, however, significant difference between mediation and Collaborative Practice, such as:
(A) Mediation typically occurs after the parties have incurred significant time and expense in the litigation process, including hearings and discovery; by contrast, the collaborative law process starts as soon as the parties agree to begin the process, often before anything is even filed with the court.
(B) In the collaborative law process, everyone is in the same room together, whereas in mediation, the parties and attorneys are typically in separate rooms and the mediator travels back and forth between rooms to consult with each side;
(C) In the collaborative law process, there are typically 4-8 joint sessions, whereas mediation typically occurs in one long day;
(D) In the collaborative law process, the parties agree to full disclosure – the parties agree from the beginning not to withhold important information;
(E) In the collaborative law process, there is no pressure to resolve the case in one session – the process moves as fast or slow as the parties require.
(F) Joint sessions typically last 2 hours, whereas mediation typically lasts at least 4 hours, and may last as long as 8-12 hours; and
(G) Joint sessions can stop at any time if anyone feels that the process is moving too quickly or if more time is needed to gather documents or information.
5. I don’t trust my spouse. Should I still try the collaborative law process?
It is very common, if not expected, that people going through divorce do not trust their spouses. The Expectations of Conduct and Collaborative Participation Agreements require that the parties be truthful throughout the collaborative law process, not just with their attorneys, but with every member of the Collaborative Team. There are safeguards built into the collaborative law process to account for the lack of trust between the parties. Talk to your lawyer about any concerns you have about the collaborative law process to be sure that it is the right choice for you.
6. I am afraid of my spouse. Should I still try the collaborative law process?
It is imperative that every person feel safe during the collaborative law process. If you have concerns about your safety, talk to your lawyer about accommodations that can be made to help you feel more secure. For example, if you are afraid to be in the same room with your spouse, ask your lawyer if you can be in a separate room during some or all of the joint sessions. You may also want to meet individually with the Communications Facilitator to help articulate your concerns to the rest of the Team. Your attorney or Communications Facilitator will be able to direct you to appropriate counseling or social services if you need additional help.
