FAQ

What is required to get a divorce in Texas?

In order to file for divorce in Texas, one spouse must live in the state of Texas for at least six months, and reside in the county where the divorce is being filed for at least 90 days before submitting the divorce petition. If a person is absent from the state of Texas on Public Service, such as service in the armed forces of the United States or other service of the United States, or of the state of Texas, or if the person is absent from the state of Texas while accompanying his or her spouse in the spouse's service in the armed forces of the United state or other service of the United States or of the state of Texas, the time spent outside the state of Texas or outside the county of residence is still considered residence in the state of Texas and of that county in order to meet the state of Texas residency requirements for filing a divorce.

Texas is a no-fault divorce state, which means you will be granted a divorce, without having to site any specific reasons. The divorce can be based on the grounds that the marriage has become irreconcilable due to conflict between your personalities.

However, you and your attorney can decide to also seek a divorce on the grounds of fault. In that case, you must present evidence to prove fault, which the court may take into consideration when determining an equitable division of property.

Are there special requirements with a Texas Military Divorce?

Compared to a typical civilian divorce, a Texas military divorce has several unique issues. There are specific state and federal laws and rules that apply.

Laws are set up to protect military members on active duty against being held in 'default' for failing to respond to a divorce action. This protects active military members from being divorced without knowing it.

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Texas court to have jurisdiction over the active military member.

Requirements for filing a military divorce include:

  • One spouse must reside in Texas
  • One spouse must be stationed in Texas

The federal government has enacted the Uniformed Services Former Spouses' Protection Act that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse. This Act is combined with the normal Texas property division laws.

In Texas, both child support and spousal support awards may not exceed 60% of a military member's pay and allowances.

Richard Lybarger can help you with your divorce or family law situation.

What is a marriage?

The Federal Defense of Marriage Act defines marriage as "only a legal union between one man and one woman as husband and wife" Marriage is the legal union of a couple as spouses. The basic elements of a marriage are:

  • The parties are legally able to marry each other
  • There must be mutual consent of the parties
  • A marriage contract as required by law

In Texas, couples are responsible for obtaining a valid marriage license from the state, and each individual must apply in person to obtain the license. There is a 72-hour waiting period from the time the license is issued until the ceremony can take place.

What is a common-law marriage?

Texas is one of the few states in the country that recognizes common law marriage. In Texas, common law marriage is defined as an "informal marriage." If the parties have a common law "informal" marriage, it stands on equal footing and with equal dignity to any ceremonial marriage. Once a marriage has come into existence, whether at common law or by way of a ceremonial marriage, the marriage can only be dissolved by the court of competent jurisdiction in a divorce or marriage dissolution proceeding with the Court entering a judgment of divorce or marriage dissolution.

Under section 2.401 of the Texas Family Code, an the existence of a common law "informal" marriage can be established either by registering the informal marriage with the county without having a ceremony, or by meeting the following three 3 requirements:

  • The man and woman agree to be married
  • The man and woman cohabitate in Texas
  • The man and woman hold out to other parties that they are married to each other.

What is an annulment?

Annulment is a legal process in which a court determines the parties were actually never legally married to begin with; thus, the marriage is null and void. However, marriage annulments are rarely granted; but if the grounds for granting an annulment exist, the Court can grant an annulment. The grounds for granting an annulment include:

  • If one party is incapable of consent
  • Due to mental incapacity or intoxication
  • Fraud and deception about some aspect of the marriage
  • Failure to consummate the marriage

Does Texas recognize legal separations?

No. Texas does not recognize legal separations. Sometimes a person might not be sure he or she wants a divorce. Sometimes a married couple might decide for their own financial reasons that they wish to continue being marriage but live separate lives in terms of their finances. If a married have a child and they are separated, the Court can enter order orders for conservatorship, parental rights and duties, possession and access to the child "visitation," and for the support of their child or children (including medical support). The parties can later file a suit for divorce and incorporate these orders respecting their child or children into the decree or they can modify the order as necessary and incorporate it into the terms of their decree or divorce. With regard to their marital relationship, a married couple can file a divorce case and have the Court enter temporary orders that will address their rights and duties with respect to their marital property and spousal support. The parties can also enter into a Marital Agreement which may also sometimes be called a "Post-Marital Agreement" and accomplish a number of things. For example, the parties can partition and set aside to each other their respective share of community property as their respective sole and separate property and future income, they can confirm their respective separate property, they can provide for the payment of spousal support for one of the spouses, and they can also provide for what happens to their respective property in the event they later decide to divorce. Proceedings they have to do with children or separated spouses and to address property can be very complex depending on the circumstances and can be tailored to the specific needs of the parties.

Richard Lybarger is experienced and able to assist you if you are facing this kind of situation and you can call and schedule a time discuss your specific needs with him.

Do I need a lawyer to file for divorce?

The simple answer to this question is: No. You are not required to have a divorce lawyer to file for divorce. However, it is always advisable to hire a competent and experienced divorce lawyer if there are contested issues involving property, finances or children. Even with an "uncontested divorce," in which the parties both want to be divorced, significant disagreements often (and are really almost certain to arise) when dealing with issues like child custody, how decisions will be made regarding children, how possession and access "visitation" will be handled, child support, and property divisions. Divorce lawyers all have stories of people who want to save money and try to handle their divorce on their own and the parties who is not represented can be taken advantage of and the parties can create serious problems for themselves that could be easily avoided had they been represented by a competent divorce lawyer. Having a competent divorce lawyer on your side is the best way to protect your interests and make sure you are informed about the consequences of every decision you make. Houston divorce and family law attorney Richard Lybarger understands the unique laws and how they are applied in Texas.

How long does it take to get a divorce?

Texas law requires that a couple wait 60 days after the date the divorce petition is filed to finalize the divorce. The length of time it takes to resolve a divorce case depends on many factors.

When a couple is in agreement on all terms of the divorce, the final decree of divorce can be prepared and signed by the parties during the 60 day period and can be entered by the court on the 61st day. The divorce is final once the judge declares it in court and signs the decree of divorce.

However, when the parties are not in agreement or are able to be in agreement but needs to address complex issues that may include significant property, business interests, children who may have special needs, and other issues far too many to mention here, the average length of time to finalize a contested divorce can be 6 months to one year or longer, depending on the complexity of the issues the parties and attorneys need to address.

Richard Lybarger is an experienced divorce and family law attorney who can assist you as you go through the process of divorce in Texas. You may call Richard Lybarger today to schedule an appointment.

Does everyone go to court when they get divorced?

No, you are not required to go to court to get a divorce. In fact, most divorce cases, including those that start out being contested (even highly contested) tend to be settled with the assistance of competent divorce attorneys who understand and appreciate the needs of the parties and the issues that need to be resolved and the parties are usually able to avoid the time and expense of a trial. Whether or not your case goes to trial depends on the specific details of your case. For example, if you have a situation where you and your spouse have an agreement, or come to an agreement through negotiations (like the formal negotiation process of Mediation or through the Collaborative Divorce Process), the agreement is reduced to a written document by you divorce lawyer. Once the document is submitted and approved by the Court, you don't have to go to court and have a trial. However, if you and your spouse can't agree on all of the terms of your divorce and what is best for your children, you will need to go to court to ask a judge to make the decisions.

Who has to pay child support?

Both parents have a duty to support their children. The purpose of child support is to maintain the financial welfare of children and it includes medical support. Child support is paid by the non-custodial parent to the parent who is awarded legal custody of the children (sole managing conservatorship or the right to designate the primary residence of the children is there is a joint managing conservatorship).

Richard Lybarger is an experienced divorce and family law attorney who can talk with you about the needs of your children including custody and support. You may call Richard Lybarger today to schedule an appointment.

How is child support calculated?

The Texas Family Code contains guidelines for the calculation of child support. At this time the maximum amount of net resources (generally the income a person earns) subject to child support consideration is $8,550 per month. The Texas child support guidelines apply to situations in which the non-custodial parent's monthly net income is equal to or less than the current monthly amount of $8,550. The court applies the following schedule:

  • 1 child -> 20% of net resources
  • 2 children -> 25% of net resources
  • 3 children -> 30% of net resources
  • 4 children -> 35% of net resources
  • 5 children -> 40% of net resources
  • 6 or more children -> No less than 40% of monthly net resources

If the non-custodial parent's monthly net resources exceed $8,550, the court will apply the percentages listed above to the first $8,550.00 and may then order additional amounts of child support if there is a proven need for the child's well-being.

If the non-custodial parent has children from another relationship or marriage, the amount of child support may be reduced. The court can also hear evidence and deviate from the amount that would be ordered under the Texas Child Support Guidelines based on a number of factors set out in section 154.123 of the Texas Family Code depending on the circumstances of the parties and the best interest of the child or children.

Richard Lybarger is an experienced divorce and family law attorney who can talk with you about the needs of your children including their support. You may call Richard Lybarger today to schedule an appointment.

What is included in the child support?

The non-custodial parent's gross income includes wages, commissions, overtime pay, tips, bonuses, interest, dividends, rental income, royalty income, trust income, retirement income, disability income, etc. is taken into consideration in determining his or her "resources" to pay child support. From this amount the following items are subtracted:

  • Social security taxes
  • Federal income tax
  • State income tax - if living in a state that collects state income tax
  • Union dues
  • Health insurance premiums for the child/children

Child support orders will include provisions for medical support including health insurance coverage. Depending on the circumstances of the parties, child support orders usually provide that the non-custodial parent will be required to provide and pay for health insurance for the children, although in many instances the insurance might be better provided by the custodial parent and the non-custodial parent will be ordered to reimburse the custodial parent for the actual cost of the health insurance coverage by paying to the custodial parent cash medical support. The children must be included on a health insurance policy that is available to a parent through his or her employment, union, or membership in a trade association or through the Affordable Care Act. When insurance is not available through either parent's employment, the non-custodial parent will be ordered to provide insurance coverage to the extent available and affordable which may include a governmental program or the Affordable Care Act.

Richard Lybarger is an experienced divorce and family law attorney who can talk with you about the needs of your children including their support. You may call Richard Lybarger today to schedule an appointment

How long does child support have to be paid?

Child support is due and payable until the child becomes 18. However, if the child is 18 and has not graduated from high school but is fully enrolled, the child support continues until high school graduation. When a child has a physical or mental disability such that the child is not capable of self support, the court can order the parents to pay support for the adult disabled child for an indefinite period of time.

A decree of divorce can include other agreements by the parents. For example, one parent promises to pay the child's college tuition, pay for travel, transportation, a car, automobile insurance, etc. These types of agreements are not enforceable by contempt, but can be enforced as a contract by the parent or by the child, if the child is over the age of 18.

Richard Lybarger is an experienced divorce and family law attorney who can talk with you about the needs of your children including their support. You may call Richard Lybarger today to schedule an appointment

What can I do to enforce payment of child support?

The Child Support Division of the Attorney General's Office is Texas' official child support enforcement agency. However, private attorneys can also be retained by a parent to file suit to enforce a child support obligation. In come counties such as Harris County, Texas, the Harris County Domestic Relations office child support division provide excellent service to obligees seeking to enforce a child support obligation.

When a non-custodial parent fails to pay child support, they are subject to enforcement measures according to Texas child support laws which will collect regular and past-due payments:

  • The court can require wage withholding from the non-custodial parent's paycheck.
  • Liens can be placed on their property or other assets.
  • Issued licenses can be suspended.

If a parent has been found to have violated a court order under which they have been ordered to pay child support or provide medical support for their child, the judge can sentence the party in violation of the court order to jail, impose a fine, order the person to community supervision, and enter a cumulative money judgment for past due child support, and order the person to pay attorneys fees and costs of court.

This can be very confusing even for many of the attorneys who practice family law on a regular basis. You should immediately contact an experienced divorce and family law attorney if your case involves children and parties who reside in different states.

Richard Lybarger is an experienced divorce and family law attorney who can talk with you about the needs of your children including their support. You may call Richard Lybarger today to schedule an appointment

What if the non-custodial parent lives in another State?

There are laws which require that states cooperate with each other on child support enforcement matter and on matters having to do with custody and visitation. There is a saying in family law that if you are dealing with the children you go where the child or children are, and if you are dealing with child support issues, you go where the money is. Although this is an over simplification of the complex issues involved, it does provide a basic understanding of how interstate matters involving children are handled.

Matters having to with a "custody" determination (an "initial" custody determination or changes to an order that constitutes an "initial" custody determination) are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which essentially provides that matters involving conservatorship, rights and duties of the parties, and visitation must be addressed in the state that is the "home state" of the child. The "home state" is the state where the child has resided for six months or if the child is under six months of age, the state where the child has resided since birth. This area of the law is very complex and can be very confusing even for many of the attorneys who practice family law on a regular basis. You should immediately contact an experienced divorce and family law attorney if your case involves children and parties who reside in different states.

With regard to child support, the Uniform Interstate Family Support Act (UIFSA) addresses how child support and also alimony can be enforced when the parties reside in different states. Just as with interstate matters involving a child custody determination that is governed by the UCCJEA, this area of the law concerning interstate support enforcement or modification is very complex and can be very confusing even for many of the attorneys who practice family law on a regular basis. You should immediately contact an experienced divorce and family law attorney if your case involves children and parties who reside in different states.

Richard Lybarger is an experienced divorce and family law attorney who can talk with you about your case involving parents and children who reside in different states. You may call Richard Lybarger today to schedule an appointment.