The Divorce
Process in Texas
A divorce starts like any other civil lawsuit: you file a petition in the appropriate court and a pay a filing fee. There is an extra fee if your spouse has to be serve’; the process of formally giving the spouse a copy of the petition and letting him or her know that they have been sued (for divorce). If it is an uncontested divorce, then the spouse can sign a ‘waiver of service’ and formal service is not necessary.
Minimum Time
The minimum amount of time, by law, is sixty days from the day you file. However, the 60-day waiting period can be waived if there has been family violence.
Costs involved
Attorneys in this area charge anywhere from about $175.00 to $400.00 or higher per hour. I charge $200.00 per hour. There are also court costs and expenses. For example, court costs for a divorce with children are over $300. A divorce that is basically "agreed" should cost around $1,000 to $1,500 total, unless there is extra paperwork to be done, such as (1) specialized real estate documents or (2) qualified domestic relations orders (QDRO's), which are necessary to divide a 401k or a retirement account.
The total cost will depend on things that neither you nor I can control. For example, discovery, mediation, and trial will increase fees, sometimes dramatically. In some cases, they are necessary and may be worth the costs. In many cases, they are not.
Each divorce case – like each person – is different. Some start out being ‘uncontested’ then turn nasty. Others start out contested and end up settling quickly. Once again, this is primarily up to the people getting divorced. Few divorces actually go to a final trial However, much legal work could be required to get the other side to settle.
Temporary Orders
As mentioned before, the divorce process takes a minimum of 60 days in Texas. However, it can take much longer in some cases. What happens to the children, property, etc. during that time? That is where Temporary Orders come into play. Shortly after the process begins, you can ask the court to issue temporary orders which will address these issues until the divorce is final. For example, temporary orders will often state who has temporary custody of any children – along with visitation for the other parent – child support, psychological evaluations of the parents and/or children, and who is entitled to use of the family home.
Dividing the assets and the debts
Texas is a community property state. This simply means that whatever property (real estate, personal property, income and other monies) comes into the possession of one of the spouses belongs to both spouses. There are a few exceptions; property that is inherited, received as a gift, or owned prior to marriage is separate property. Also money received from a personal injury lawsuit – except for funds for ‘lost of earning capacity’ – are also separate property. However, it can be converted to community property in certain situations. Property that is brought into the marriage by one spouse remains separate property, but once again can be converted to community property.
Debt is generally treated the same way as assets. However, some types of debts are more likely to be assessed to one of the spouses. For example if one spouse has cosmetic surgery during the marriage and there is a debt owed on it, a court would be likely to assign that debt to the one who had the surgery. Also, if an asset – for example the family home – is awarded to one of the spouses, then the spouse will generally also take any debt assigned to that asset – i.e. the mortgage.
One thing that often surprises people is that creditors aren't bound by what's in your decree. So, if the Final Decree awards a debt that is in both spouses’ names to husband, and husband does not pay, the creditor (let’s say the mortgage company) can sue both the husband and the wife and get a judgment against each one. The Final Decree does not protect the wife against the creditor. If she pays the debt, she can sue husband to recover the money, but she would have to try to collect on any judgment just like any other creditor, which can often be difficult.
Retirement Benefits
If either side has retirement benefits, it can complicate a divorce. Quite often, both spouses have retirement accounts through their jobs and agree that each party keeps their own retirement. However, each spouse is entitled to a share of the other’s retirement accounts. The amount is a complicated formula and requires a “Qualified Domestic Relations Order” or QDRO. This is a complicated process and most attorneys do not draft them. I would employ an attorney who regularly drafts QDROs on your behalf. This usually adds about $600 to the costs.
Mediation
Contested cases are almost always referred to mediation by the court. Mediation is a very successful process for resolving cases. Mediation can run from $100 to $1,000 per day for each side. That is just for the mediator and does NOT include attorney fees. While this may seem like a lot of money, it can be much less than the cost of a full trial.
Child Custody
In most divorce cases, the mother gets custody of the children. This is not because of a bias in favor of the mother, but rather that the parents usually agree to this arrangement. There is nothing in the law that favors one parent over the other based on gender. In fact, courts almost always prefer to see both parents involved in the children’s lives as much as possible
How does the court decide who gets custody? The decision is based upon what the court considers is ‘in the best interest of the child’. Some of the things the court will consider is which parent has participated in the children's activities, a parent's past which reflect negatively on him: mental illness, criminal convictions, alcoholism, family violence, or drug use. A custody battle can be quite expensive…a full custody battle can run from $5,000 to $25,000 or higher.
Child Support
Texas has a standard formula for calculating child support. Basically it is 20% of net resources if there is one child. (25% for two, and increasing percentages for more children). “Net resources” is NOT what you bring home. Generally, it is your total income from all sources, minus federal income taxes, social security taxes, and what you pay for health insurance on the child.
Not Paying Child Support
There was a time when little was done to enforce child support. Today, the landscape is very different. Refusing to pay child support is simply not an option. First, the court will almost always order that child support be deducted from paychecks. Eventually, a ‘motion for enforcement’ will probably be filed. Then the person who owes the child support could face jail, fines, and paying the other side’s attorney fees. There are defenses, and if you find yourself in this situation, or if you need to enforce a child support order, you should contact an attorney as soon as possible.
Visitation
Visitation is generally at any time that the parents agree. However, since divorce couples rarely always agree, there is a ‘standard possession order’ that controls when the parents do not agree. This is the standard “1st, 3rd, and 5th weekend” with certain holidays and extended visitation during the summer. We can discuss the details during your consultation.
A divorce starts like any other civil lawsuit: you file a petition in the appropriate court and a pay a filing fee. There is an extra fee if your spouse has to be serve’; the process of formally giving the spouse a copy of the petition and letting him or her know that they have been sued (for divorce). If it is an uncontested divorce, then the spouse can sign a ‘waiver of service’ and formal service is not necessary.
Minimum Time
The minimum amount of time, by law, is sixty days from the day you file. However, the 60-day waiting period can be waived if there has been family violence.
Costs involved
Attorneys in this area charge anywhere from about $175.00 to $400.00 or higher per hour. I charge $200.00 per hour. There are also court costs and expenses. For example, court costs for a divorce with children are over $300. A divorce that is basically "agreed" should cost around $1,000 to $1,500 total, unless there is extra paperwork to be done, such as (1) specialized real estate documents or (2) qualified domestic relations orders (QDRO's), which are necessary to divide a 401k or a retirement account.
The total cost will depend on things that neither you nor I can control. For example, discovery, mediation, and trial will increase fees, sometimes dramatically. In some cases, they are necessary and may be worth the costs. In many cases, they are not.
Each divorce case – like each person – is different. Some start out being ‘uncontested’ then turn nasty. Others start out contested and end up settling quickly. Once again, this is primarily up to the people getting divorced. Few divorces actually go to a final trial However, much legal work could be required to get the other side to settle.
Temporary Orders
As mentioned before, the divorce process takes a minimum of 60 days in Texas. However, it can take much longer in some cases. What happens to the children, property, etc. during that time? That is where Temporary Orders come into play. Shortly after the process begins, you can ask the court to issue temporary orders which will address these issues until the divorce is final. For example, temporary orders will often state who has temporary custody of any children – along with visitation for the other parent – child support, psychological evaluations of the parents and/or children, and who is entitled to use of the family home.
Dividing the assets and the debts
Texas is a community property state. This simply means that whatever property (real estate, personal property, income and other monies) comes into the possession of one of the spouses belongs to both spouses. There are a few exceptions; property that is inherited, received as a gift, or owned prior to marriage is separate property. Also money received from a personal injury lawsuit – except for funds for ‘lost of earning capacity’ – are also separate property. However, it can be converted to community property in certain situations. Property that is brought into the marriage by one spouse remains separate property, but once again can be converted to community property.
Debt is generally treated the same way as assets. However, some types of debts are more likely to be assessed to one of the spouses. For example if one spouse has cosmetic surgery during the marriage and there is a debt owed on it, a court would be likely to assign that debt to the one who had the surgery. Also, if an asset – for example the family home – is awarded to one of the spouses, then the spouse will generally also take any debt assigned to that asset – i.e. the mortgage.
One thing that often surprises people is that creditors aren't bound by what's in your decree. So, if the Final Decree awards a debt that is in both spouses’ names to husband, and husband does not pay, the creditor (let’s say the mortgage company) can sue both the husband and the wife and get a judgment against each one. The Final Decree does not protect the wife against the creditor. If she pays the debt, she can sue husband to recover the money, but she would have to try to collect on any judgment just like any other creditor, which can often be difficult.
Retirement Benefits
If either side has retirement benefits, it can complicate a divorce. Quite often, both spouses have retirement accounts through their jobs and agree that each party keeps their own retirement. However, each spouse is entitled to a share of the other’s retirement accounts. The amount is a complicated formula and requires a “Qualified Domestic Relations Order” or QDRO. This is a complicated process and most attorneys do not draft them. I would employ an attorney who regularly drafts QDROs on your behalf. This usually adds about $600 to the costs.
Mediation
Contested cases are almost always referred to mediation by the court. Mediation is a very successful process for resolving cases. Mediation can run from $100 to $1,000 per day for each side. That is just for the mediator and does NOT include attorney fees. While this may seem like a lot of money, it can be much less than the cost of a full trial.
Child Custody
In most divorce cases, the mother gets custody of the children. This is not because of a bias in favor of the mother, but rather that the parents usually agree to this arrangement. There is nothing in the law that favors one parent over the other based on gender. In fact, courts almost always prefer to see both parents involved in the children’s lives as much as possible
How does the court decide who gets custody? The decision is based upon what the court considers is ‘in the best interest of the child’. Some of the things the court will consider is which parent has participated in the children's activities, a parent's past which reflect negatively on him: mental illness, criminal convictions, alcoholism, family violence, or drug use. A custody battle can be quite expensive…a full custody battle can run from $5,000 to $25,000 or higher.
Child Support
Texas has a standard formula for calculating child support. Basically it is 20% of net resources if there is one child. (25% for two, and increasing percentages for more children). “Net resources” is NOT what you bring home. Generally, it is your total income from all sources, minus federal income taxes, social security taxes, and what you pay for health insurance on the child.
Not Paying Child Support
There was a time when little was done to enforce child support. Today, the landscape is very different. Refusing to pay child support is simply not an option. First, the court will almost always order that child support be deducted from paychecks. Eventually, a ‘motion for enforcement’ will probably be filed. Then the person who owes the child support could face jail, fines, and paying the other side’s attorney fees. There are defenses, and if you find yourself in this situation, or if you need to enforce a child support order, you should contact an attorney as soon as possible.
Visitation
Visitation is generally at any time that the parents agree. However, since divorce couples rarely always agree, there is a ‘standard possession order’ that controls when the parents do not agree. This is the standard “1st, 3rd, and 5th weekend” with certain holidays and extended visitation during the summer. We can discuss the details during your consultation.