Frequently Asked Questions About Family Law
- 1. “My case is simple. Can’t I just do my own divorce?”
- If you don’t have children together and you don’t have significant community property, then the do-it-yourself approach may work for you. But be careful when using the forms you can get from the law library or from online. It’s deceptively simple-looking because the provisions are reduced to check-boxes. But the devil is in the details, and a proper divorce decree needs to cover many complicated issues, including conservatorship, possession schedule, child support, health care, property division, taxes, and more. When well drafted by an attorney, a divorce decree for a couple with children can easily be 35 pages single-spaced.
- 2. “Do we each need to have our own attorney? We really agree on everything and we just need to have the papers drawn up.”
- Texas law prohibits one attorney from representing both spouses. If you hire an attorney, that attorney represents only you, and can give advice only to you. In fact, an attorney must be careful not to even give the impression of giving legal advice to the opposing party. That said, if you really do agree as to all issues — which is extremely rare — you can hire an attorney to file the case and draft the final decree. It is still a good idea for your spouse to have another attorney review the final decree, though.
DIVORCE — GENERAL
- 3. “Is it possible for me to get an annulment instead of a divorce?”
- Maybe—but it’s unlikely. Annulments can be granted only if one of the following can be proven:
(1) The marriage took place due to duress or coercion;
(2) One of the parties was under the lawful age to marry;
(3) At least one party to the marriage was intoxicated at the time of the marriage and didn’t intend to marry;
(4) The parties did not wait the required 72 hours following the issuance of the marriage license;
(5) It is discovered, after the marriage, that the man is impotent (note: infertility is insufficient); or,
(6) A party was fraudulently induced into marriage.
- 4. “‘m not ready to get divorced, but I think we need to be legally separated.”
- In Texas, there’s no such thing as legal separation. Once you are married, you remain married until a court signs a decree of divorce or annulment. If one of you moves out, and you have children together, then it is possible to file a suit for child support (without actually filing for divorce). It is also possible, if you know you are going to begin living separately, to execute a post-marital partition agreement to divide your property.
- 5. “How do I know if I am ‘common law’ married?”
- The Texas Family Code refers to this as “informal marriage,” and there are three requirements:
(1) Both parties must have intended to be married;
(2) The parties must have lived together as husband and wife; and
(3) The parties must have held themselves out to the public as being married.
- 6. “How long does it take to get divorced?”
- Short answer: anywhere from a few months to over a year. You could write a book on all the things that can happen that slow down a divorce case. But with parties and attorneys who are motivated and cooperative, it is certainly possible to have it finished within a few months. Once you have filed the divorce petition, there is a mandatory 60-day waiting period before the court can grant your divorce. (In domestic violence situations, this requirement may be waived.) In theory, if you and your spouse can quickly reach agreement, the final divorce decree can be filed on the 61st day. But be careful with the idea that “my spouse and I have already talked about everything and we agree.” The issues involved in divorce are both very important and very nuanced. When you have a detailed conversation with your attorney, you are likely to learn about issues that you and your spouse had not previously discussed.
- 7. “What are the grounds for divorce?”
- Texas allows “no-fault” divorces. This means you or your spouse can file for divorce for any reason or no reason at all. Some states call it “irreconcilable differences,” in Texas we say that “the marriage has become insupportable because of discord or conflict of personalities that has destroyed the legitimate ends of the marriage relationship and prevents any reasonable chance of reconciliation.” Either spouse can also allege fault grounds, such as adultery, cruel treatment, felony conviction, abandonment, etc. But in most cases, the original pleadings will contain “no-fault” language because alleging fault at the outset can make it difficult (if not impossible) to negotiate an agreed settlement.
- 8. “My spouse wants a divorce, but I don’t. Can I keep it from happening?”
- In Texas there is no way to stop the divorce proceeding from going forward, assuming the residency requirements have been met. But it is often the case that a divorce case is filed and then later dismissed because the spouses decide to try to work it out.
- 9. “I need a divorce, but I cannot locate my spouse. Can the court still grant my divorce?”
- If you have lost touch with your spouse and do not know where he/she is living, you will have to show the court that you have made a diligent effort to find and give notice to him/her. You will have to do “notice by publication,” which is a strict, multi-step process for which you will almost assuredly need the help of an attorney.
- 10. “This is already stressing me out. How am I going to deal with this emotionally?”
- It is hard to avoid the stress and anxiety that go along with getting divorced. But even though it is likely to be a painful time for you and your family, it may truly be what needs to happen. The transition to two households can be rocky, but in the end it is usually better for everyone than trying to “save” a dysfunctional (or destructive) family relationship.It is normal to experience a wide range of emotions while going through a divorce. Professional counseling during this time is a great idea. A counselor or therapist can help you weather the emotional storm so that you can be fully present to make important decisions and provide moral support to your children. A good counselor can also advise you on helping your children, who will surely need extra encouragement, no matter how well they may seem to be taking it.
- 11. “Do we have to have a trial in order to get divorced?”
- No, you certainly do not have to go to trial. Only a small minority of cases are actually decided in a trial. Most divorces settle out of court; in other words, the spouses eventually work out a written agreement that spells out the terms for child custody, property division, etc.
DIVORCE — GETTING STARTED
- 12. “I know I need to get divorced. What is the first step?”
- To begin a divorce case, you must file a document with the court that tells the court who you are, who your spouse and children are, and what you are asking the court to do. This document is called an “Original Petition for Divorce” (or, informally, a “divorce petition”). The divorce petition should, in general, ask the court to dissolve the marriage, divide your property and debts, and make appropriate orders regarding the children. Your local divorce attorney can tell you if you have special circumstances that require other more specific requests in the divorce petition. The next step after the divorce petition is filed is to either have your spouse served, or have them sign a “waiver of service.”
- 13. “I have to live in Texas for a certain amount of time before I can file for divorce, right?”
- Generally, you must have lived in Texas for the previous six months, and in the particular county for the previous 90 days before you can file for divorce. There are some circumstances — particularly when children are involved — in which you may be able to file in Texas even if you do not meet the normal residency requirement. You should discuss these issues with your attorney at the very beginning in order to determine which court is able to grant you the relief you seek.
- 14. “I just got served with divorce papers. What do I need to do?”
- You should contact a lawyer immediately. The first procedural step is to file an “Original Answer.” The papers you were served will explain the deadline for filing the Answer — saying something like “the next Monday following the passing of 20 days” from the date you were served. But don’t wait! If you fail to file your Answer, you run the risk of your spouse going to court without you and getting the court to grant the divorce (dividing property, assigning parental rights, ordering child support) all without any notice to you and without your input!
- 15. “How do I retain an attorney to represent me in my family law case?”
- Call our office at (512) 480-9777 to schedule a consultation. It is always best to meet face-to-face to talk about your case because you want to feel comfortable with the person you are hiring to represent you. (Phone consultations are possible for potential clients who live outside the Austin area.) After having an initial consultation with the attorney, you should be given a written contract for legal services that explains the attorney’s policies and procedures. Be sure to ask your attorney to explain any parts of the contract that you have questions about. Almost all attorneys will require a deposit (or “retainer”) before they begin working on your case.
- 16. “What do I need to bring with me to the initial consultation?”
- If you already have a case on file with the court, or you were recently served with papers, please bring all the documents you have received from the court or from your spouse. Be sure to write down any questions you may have, whether they are questions about the divorce process or about the specific facts of your case. It is also a good idea to bring any relevant financial documents, like tax returns and account statements.
DIVORCE — COST
- 17. “How much does it cost to hire an attorney?”
- Sam Colletti’s fees are $275.00 per hour.
- 18. “Who pays the attorney fees?”
- Most of the time, the parties agree to pay their own attorney fees. But there are times when the court will make a specific order for how the attorney fees will be paid. In special situations, the court will consider the behavior of the parties and can award attorney fees as a sanction.
- 19. “How much is my divorce going to cost?”
- It is always difficult to predict the total cost of a family law case. The common explanation is that it takes as long and costs as much as the parties make it. The greater the number of contested issues, and the more contentious the arguments, the higher the costs tend to be. For a relatively simple case, it may cost only a few thousand dollars. For a case with multiple hearings and a final trial, it could be $20,000 or more.
- 20. “Do you offer a flat-fee divorce?”
- No—and you should be careful about offers to do family law work for a flat fee. Regardless of how simple you think your situation is, many things just can’t be predicted in a divorce proceeding. But Sam Colletti will give you his best estimate of expected costs, and ask for an appropriate deposit.
- 21. “Are there ways that I can help to keep costs down?”
- Yes—the more you are actively involved in gathering and organizing the information needed to assess and prepare your case, the less time the attorney will have to spend. Not only does taking an active role help to reduce costs, it also helps you to organize your own thoughts and clarify your goals.
- 22. “My foremost concern is for my kids. How does custody get decided?”
- The court’s mandate is to determine what will serve “the best interest of the child.” There is a long list of factors that play into the “best interest” determination, and Sam Colletti can help you understand how those factors fit the specific facts of your case.
- 23. “I want full custody of my kids.”
- In Texas, the law does not actually use the term “custody.” Rather, what people generally think of as “custody” is broken down into two parts: “conservatorship” and “possession schedule.” In your consultation with Sam Colletti, he can help you develop your specific goals regarding conservatorship and possession schedule.Conservatorship is a fancy name for the power to make decisions regarding your children. This includes the right to make medical decisions and educational decisions, as well as a whole list of other decision-making powers that Sam Colletti can explain. There are two types of conservatorship in Texas: Joint Managing Conservatorship — in which parents must agree on decisions for their children; and Sole Managing Conservatorship — in which one parents has the exclusive right to make decisions for the children. In the great majority of cases, the parents will be named Joint Managing Conservators.“Possession schedule” simply means who has the kids when. In many cases the parties end up with what the law calls the “Standard Possession Order,” or something relatively close to it. Sam Colletti can explain the standard possession order and also talk to you about whether a different schedule may be more appropriate for your family.
- 24. “If we’re getting divorced, I don’t want to stay in Austin. I can move with the kids back to where my family is from, right?”
- Not so fast — in most cases, either the parties will agree or the court will impose a “geographic restriction.” It is Texas public policy to ensure that both parents have frequent and continuing involvement with their children. Moving away means that the other parent is unlikely to be able to see the kids very often. In many cases, the parents will be restricted to living within Travis and adjacent counties, for example. Talk to Sam Colletti about your reasons for wanting to move. The court refers to these as “relocation” cases, and they pose a particular set of issues.
DIVORCE — PROCEDURE
- 25. “My divorce case is on file and my spouse has been served. Now what happens?”
- At this point the parties normally begin to gather the information that will be necessary to negotiate a settlement. In many cases, the parties will need to get a court order right away to determine who will have the kids when, and how the family’s bills will get paid while the divorce is ongoing. This is called “Temporary Orders,” and can be done by agreement or by having a hearing in front of the judge.
- 26. “My spouse has always handled our finances. How do I find out what property and debts we really have?”
- Often, one of the spouses knows very little about the property belonging to the marriage. Without this knowledge it may be impossible to proceed with negotiations regarding property division. If this is the case, the lawyer can require the other spouse to provide all relevant information about the spouse’s property, debts and income. This process is called “discovery” and may take some time depending on the complexity of the parties’ property and finances. Similarly, if child custody is disputed, both parties may require information from each other that are relevant to this issue.
- 27. “How does the case end? What has to happen?”
- Family law cases normally end with a final Order from the Court. In a divorce, it is called a Final Decree of Divorce. In a custody case, it may be called a Final Order in Suit Affecting Parent-Child Relationship. But in any case, the final order will either be agreed upon by the parties, or else rendered by the judge after a trial.Once the case is filed, the parties and their attorneys will usually attempt to negotiate the terms of the divorce (property and debt division, conservatorship and possession of the children, child support, etc). The beginning is usually an information-gathering process — in which the attorneys will learn the specifics of the situation from their respective clients. Then the attorneys will, at least to some extent, share the information they have learned and try to work out a settlement with opposing counsel. When settlement talks between the attorneys reach a sticking point, a good alternative is mediation. In mediation, the parties and their divorce attorneys meet with a mediator (who is normally an experienced family law attorney or former judge). The mediator is a neutral, unbiased third-party who helps the parties find common ground and reach a reasonable compromise. When an agreement is finally reached, the parties will often sign a preliminary agreement that sets out the terms in what is essentially legal shorthand. Then the attorneys will draft the actual final order for the judge to sign. The very last step is a quick appearance in court by one of the parties (accompanied by their attorney) to have the judge sign the final order.If the parties cannot reach agreement, the issues that remain unsettled are set for a trial. At trial the judge (or jury) listens to the testimony of the parties and witnesses, and makes decisions on the issues on which the parties could not agree. Most family law cases are heard by a judge (called a “bench trial,” rather than a jury trial). Though you may have the right to request a jury trial, it must be formally requested well in advance of the trial date. Because so much attorney time is needed to prepare for trial (especially jury trial) the legal fees involved in trying a family law case are almost always far higher than if an agreement had been reached.