Texas Divorce Law FAQs | Answers By Divorce Lawyers in McKinney TX
Even though each divorce case is different, there are some questions that are voiced in virtually all of them. The following is a list of those inquiries and generalized responses that are intended to provide you with some guidelines for application to your case.
How Quickly Can I Get This Divorce Over?
Sixty days is the minimum because Texas has a mandatory waiting period of that length. As a practical matter, that timeframe is seldom realistic.
Divorce is a process – not an event. After having made the decision to pursue a divorce, it is natural to want the matter wrapped up promptly. It will probably not proceed quickly enough to suit you. It will simply take as long as is necessary for your spouse to accept the realities of divorce and focus upon resolving the issues that are part of the process.
Will Filing Suit Bring My Spouse to His/Her Senses?
Generally not. Some people hope that filing a divorce suit will shock his/her spouse into reality and thereby save the marriage. Although filing for a divorce sometimes saves the marriage, it rarely works out that way. Usually, it causes the other spouse to become more hostile and defensive. Therefore, the divorce should be filed with the realization that you are asking for a divorce and, barring very unusual circumstances, a divorce is what you will receive.
How Much Will This Cost?
That is a reasonable question for which there is no definitive answer. There are a number of factors that affect the cost of litigation and many of them are beyond your control and that of your lawyer. For example, the behavior of the other party and that party’s attorney can make the divorce very expensive or, on the other hand, help keep the cost down.
An ethical McKinney or Frisco divorce attorney will always pursue the client’s interests while trying to minimize the expense of the process and the time necessary to complete it.
What Should I Hear From a Lawyer About Fees?
Experienced lawyers will ask you for a retainer and quote you an hourly rate for attorney’s services. The retainer should be refundable meaning that any part that is not expended for attorney’s fees or expenses will be refunded to you.
The amount of the retainer will be based on the lawyer’s assessment of how complex the case will be and what will probably need to be done to move it toward a conclusion. The hourly rate for services will depend upon the policies of the law firm and the experience level of the lawyers.
How Can I Hire a Lawyer if I Don’t Have Access to Money?
Some law firms insist on being paid a retainer before they will agree to handle a case. Other attorneys will agree to begin representation if the lawyer believes the judge may order the other spouse to release funds to pay the expenses.
Can I Get My Spouse to Pay for the Divorce?
The answer is “yes” in the sense that expenses related to the divorce will normally be paid from community property money. Since both parties own an interest in community property funds, both parties are contributing to the costs of the divorce.
The answer is usually “no” in the sense that the judge will usually not divide the property between the parties and then order one spouse to pay the other spouse’s divorce expenses from his/her portion of the property. The judge has the authority to do that, but generally will not do so.
The judge will consider the attorney’s fees and expenses in formulating the property division orders. By doing so the judge can indirectly allocate the divorce expenses between the parties.
Since Texas is a Community Property State, Will Everything be Divided Down the Middle?
No. The judge has authority to divide the community property in a lop-sided fashion. Most judges start be determining how much 50% of the marital estate is worth but he/she may vary from that percentage if the facts warrant doing so.
What are “Standing Orders?”
The courts in several north Texas counties (Collin, Dallas, Denton, Rockwall, Tarrant) have adopted “standing orders” that are applicable to all divorce suits the moment the case is filed. The orders are applicable to both parties and state that no one is to upset the status quo, either financially or with respect to the children. The orders are intended to prevent a mischievous party from: a) hiding the kids or b) spending money for frivolous purposes. It is OK to pay for ongoing living expenses, regular business expenses and expenses related to the divorce.
How do I Get a “Legal Separation?”
There is no such thing in Texas. Other states recognize various forms of “separation”, however, that is not a legal status in this state. After a divorce case is filed, there may be temporary orders entered by the court, but they do not constitute a legal separation of the types recognized in other states.
What Effect Will the Spouse’s Adultery Have on the Case?
Judges differ concerning their attitudes about adultery but it is usually not a factor that will have much effect on the division of property. However, adultery may be more important to the judge in formulating orders related to the children.
Adultery is still a “fault” basis for divorce in Texas, but a claim of that sort no longer carries the impact it once did. Family law judges have been exposed to tales involving the most bizarre varieties of misbehavior and, to some degree, are beyond the point of being shocked by violations of marital vows.
On the other hand, adultery may be import if the circumstances related to the transgression are significant. For example, the expenditure of marital funds for the purpose of pursuing the adulterous affair will catch the court’s attention. Likewise, flaunting the affair in front of the children will draw the ire of the judge. Under such circumstances, the “damage” from the adulterous conduct may result in action by the court, whereas similar misconduct without consequential “damage” may be of little concern to the judge.
Can I Throw my Spouse out of the House?
Yes and no. If your spouse agrees to move out, then the problem will solve itself. If that is not the case, then you may need to resort to other measures.
Unless there has been violence or a serious threat of violence in the relationship, the judge cannot exclude either spouse from the home without a hearing. After a temporary hearing, the judge will usually order that one party is to have the exclusive use of the residence and order the other party to move out.
Can I Change the Locks (Garage Door Opener Code) on the House?
Many attorneys will advise their clients to change the locks, alter the garage door opener, and change the alarm system code in conjunction with the filing of a divorce suit. If you fear that your spouse will return to the residence for the purpose of creating havoc, causing injury or other malicious purpose, the exclusion of that person from the house is probably an appropriate method to thwart the misbehavior. Usually, the changing of locks, etc. should be coordinated with the filing of the divorce suit and service of the divorce paperwork upon the other party.
You should consider your options before making such a decision. If you believe your spouse will agree to move out after learning you have filed a divorce suit, changing the locks may be an unnecessary expense.
Can I Just Throw Out My Spouse’s Stuff?
No, that is counterproductive behavior. Engaging in such misconduct will enrage your spouse, result in the unnecessary expenditure of funds to replace the lost items, and probably irritate the judge. None of those consequences will be beneficial.
It is appropriate to gather up your spouse’s clothing and personal effects so that they can be picked up. They should be appropriately packed and made available as soon as practical.
Can I Open My Spouse’s Mail?
No. If you receive any mail addressed solely to your spouse, it should be forwarded to him/her by you or through your attorney.
I Think My Spouse is Hiding Assets – How do I Find Them?
It is possible for a spouse to hide assets. However, most people do not have the means, the time or the dedication to do so. In today’s world, there is a paper trail created by virtually every financial transaction. Therefore, it is generally possible to figure out what money has come into a spouse’s hands and where it has gone.
Generally there will be an order entered requiring both parties to prepare sworn inventories that list all assets and debts. That information will give you a good idea whether your spouse is being honest or deceitful.
To double check, apply the IRS’ “standard of living” audit to your financial facts. Your lawyer can tell you how to do it.
Should I Close Bank Accounts?
Whenever you take unilateral action that alters the financial status quo, you must be prepared to offer a reasonable explanation to the judge for your actions and be able to account for how the money has been handled.
If the suit was filed in a county that uses Standing Orders or you were served with a Temporary Restraining Order, you are probably prohibited from closing accounts. If you are not under such orders, you are free to close the accounts. However, you should consider the possible consequences. Closing an account without notice to your spouse may increase the hostility level and foster mistrust. Further, it may cause checks to bounce and create difficulties with creditors.
If you believe your spouse is likely to spend or hide money from an account, it may be wise to place the funds beyond your spouse’s reach by depositing it in a new account. If you do so, you should leave sufficient funds in the old account to cover any outstanding checks and a reasonable sum for your spouse’s use.
Should I Cut Off the Credit Cards?
Standing Orders usually preclude a party from altering the status of credit card accounts. Further, whenever you take unilateral action that alters the financial status quo, it must be reasonable and intended to protect the marital estate rather than punish the other spouse.
If your experience with your spouse leads you to believe he/she will run up the credit card bills, it may make sense to cut off the accounts. If it is unlikely that your spouse will misuse the line of credit available, closing the account would be unwise.
If you do close accounts, the credit card firms will generally require that the account be completely closed (i.e., neither spouse will be able to charge to the account) and a new account be opened in the name of one party only. Any existing balance on the old account will be transferred to the new account.
Can I Record Telephone Conversations?
Wiretapping is a felony and can subject you to criminal prosecution. However, it is lawful to record a conversation if you are a party to the conversation. Therefore, you are not to “tap” conversations in which you do not participate, but you may record conversations between yourself and another person.
Can I Read My Spouse’s E-Mail?
Maybe. The dawning of the computer age has carried with it a number of state and federal statutes aimed at preserving privacy with respect to electronic transactions. Some of the federal statutes make it a criminal offense to intercept or tamper with computer generated information. Technically, intercepting e-mail is a violation of those statutes. On the other hand, information that is stored on the hard disk of the “family” computer is generally fair game for anyone who ordinarily has access to that equipment.
Should I Have My Spouse Followed?
If I do, What Then?
It depends on what you hope to gain from the information to be gathered. Investigators are expensive and they will expect to be paid whether their reports are helpful or not. The decision should be made by weighing the cost against the potential benefit.
If you do hire an investigator, keep it to yourself. The advantage of securing information without the other party’s knowledge lies in how that information is utilized. The premature release of the information will allow a dishonest person an opportunity to manufacture an explanation or excuse. On the other hand, if the dishonest person believes he/she is safe in misrepresenting the facts (i.e., lying during a hearing or in response to discovery requests), then the impact of the information can be devastating. It is important to give the other party an opportunity to choose between truth and prevarication, then you can decide what action should be taken.
Does Joint Custody Mean Equal Possession Time of the Child?
No. In Texas, the Family Code terminology is “joint managing conservatorship”, but most people tend to use the term “joint custody”. Joint managing conservatorship involved sharing of some decision making authority concerning the child – it does not refer to equal possession times for the parents.
The significance of “conservatorship” lies in the power to make decisions on behalf of the child. The most important areas of decision making authority are related to: 1) selection of the child’s place of residence, 2) selection of the child’s educational institutions, and 3) selection of the persons to provide health care for the child.
Possession time allocated to the parents is a separate issue. As a general rule, history will provide the judge with guidance concerning which parent should have primary possession of the child.
If I Don’t Work, Will He Have to Pay More Child Support Or Alimony
No. That is a self-defeating approach.
Couples often spend virtually all of their cash flow on a regular basis. A divorce case escalates the parties’ ongoing expenses in the form of attorney’s fees, the cost of setting up a new place of residence for one of the parties, etc. That means there is no extra cash from which to pay more child support or alimony.
Can I Get Alimony?
Maybe. In Texas it is called “spousal maintenance” and there are very specific rules related to eligibility. The most important requirements are a 10 year marriage and the inability to financially support oneself after the divorce.