Family Law Attorneys in Wise County, Texas
The Law Offices of Steven Williams has extensive experience in handling all types of family law issues. Listed below are just a few of the most common types of family law issues and cases that arise in the legal system.
Establishing paternity is important to contributing to a child’s sense of identity and establishing parental rights, and is also financially important. The lawyers with the Law Offices of Steven Williams have the experience, knowledge, and access to the resources necessary to establish paternity, or to set the record straight when paternity has been incorrectly asserted.
Marriage is a legally binding relationship between two people, which can be accomplished by a formal marriage or a common-law marriage. The State of Texas is known as a community property state, meaning that any and all income and property acquired after the date of a legal marriage is characterized as community property, or in other words, all such income and property is legally recognized as property of the marriage, in contrast to property of one party to the marriage, regardless of which party earns the income or acquires the property.
Divorce: Basic Information and Common Divorce-related Issues
Although no couple ever gets married with plans of having their marriage end in divorce, unfortunately many marriages do end in divorce for numerous reasons. In addition to the emotional and mental toll a divorce takes on a family, there are also many legal issues that neither party may have never considered or even thought of that arise during the legal marriage dissolution process.
An Overview of the Divorce Process
A common misconception regarding the divorce process is that of a “legal separation.” Although you may no longer be living with your spouse, and may not have been living with them for many years, Texas does not recognize legal separation…you are either married or divorced under the law. In other words, even if you are technically separated from your spouse and living apart, you are still legally married under the law of the State of Texas, and your income and property are still legally characterized as community property of that marriage.
The good news is, that it can be fairly easy to obtain a divorce in a relatively short amount of time. The State of Texas is what is called a “no fault divorce” state, meaning that a married couple does not have to allege or prove any type of fault against the other party (such as adultery, cruelty, etc.) in order to obtain a divorce; however, fault grounds are sometimes necessary when the divorce involves a custody dispute regarding minor children, when spousal support is being sought by one of the parties, or when one party intends to seek a disproportionate share (meaning more than 50%) of the division of the marital community property assets.
Divorces can be divided into two general categories, one being the “uncontested divorce,” and the other being a “contested divorce.” The uncontested divorce is generally an “agreed divorce” which moves through the legal system much quicker than a contested divorce and is the most amicable of the two options. To begin the divorce process, whether uncontested or contested, one party consults with and retains an attorney to start the proceeding by drafting an Original Petition for Divorce that is then filed by that attorney on behalf of the filing-party (the Petitioner) with the court in the county where either party has resided for the immediate preceding ninety-day period. Regardless of whether the divorce is uncontested or contested, the State of Texas has a mandatory waiting period of sixty-days before any divorce can be finalized by the court, which means that the earliest date on which your divorce may become final is sixty-one days after the filing of the Original Petition for Divorce. This waiting period cannot be waived.
The next step in the process depends on whether the divorce is uncontested or contested. If the divorce is uncontested, then the most common procedure is to have the non-filing spouse (the Respondent) sign a Waiver of Service, which is a document that is signed and sworn to before a Notary Public stating that the Respondent has received a copy of the Original Petition for Divorce, is entering a general appearance in the case, does not wish to be served with the documents by a processed server, and voluntarily waives his/her right to receive notice of a hearing in the divorce proceeding. This waiver, however, does not waive the Respondent’s right to participate in the divorce process, and does not waive the requirement that the Respondent receive a copy of the Final Decree of Divorce and/or any other Orders issued by the court.
If the divorce is contested, then the Respondent must be served with process. The usual procedure for service on the Respondent is for the Petitioner’s attorney to request the court to issue citation and hire a processed server to go out and physically serve the Respondent with the documents. Once the documents have been properly served on the Respondent, he/she will have approximately twenty days to file a response in writing, which is most often titled a General Denial or a General Denial and Counter-Petition for Divorce.
Once the Respondent’s answer has been filed, the process of working out the terms of the Final Decree of Divorce will begin. If the parties are generally agreeable to basic terms of the Final Decree, then the parties will generally work together, either through one attorney or between an attorney for each of them, to decide on property division, child-custody, support, and visitation, and all other matters at issue in the divorce. If the parties are not generally agreeable to such terms, then the process will be quite different. Often the attorneys representing each party will attempt to work together and with their clients in attempt to reach an agreement on the terms and provisions of the Final Decree. If, however, those efforts are not successful, the process will then start to become very timely and costly, as the attorneys will have to begin to prepare for a trial by taking depositions, drafting and answering discovery, producing and receiving documents, interviewing witnesses, and so on. Also, almost every Texas Court now requires the parties to attend mediation before they can take their case to trial, so if an agreement cannot be reached between the parties and their attorneys, they will be required to attend and endure the cost of mediation in attempt to settle the case before taking it to trial.
The above is just a brief summary of the basic divorce process in Texas. There are several variables, personal matters, and legal matters that arise during the divorce process that require the assistance of qualified, compassionate, and professional attorneys to either guide and help you find your way to an agreeable settlement or to vigorously protect you and fight for you in the event of a contested divorce and a trial. Obviously, the most desirable course to take is that of an uncontested or agreed divorce with the help of a qualified and knowledgeable attorney that can take you through the process swiftly and smoothly, and ensure that all legal requisites have been met and that all of the required legal documents are correctly drafted, filed, and served. Unfortunately, an uncontested or agreed divorce just isn’t possible in every situation, and then the process can often become long and costly, which makes it imperative to have an experienced attorney with the ability to handle your uncontested/unagreed divorce case in the most efficient manner possible, in order to help reduce the legal costs associated with such divorce cases.
The attorneys at the Law Offices of Steven Williams are the perfect attorneys to represent you in either divorce situation, not only because we have the experience, knowledge, and qualifications, but also because we are known for our ability to come up with creative solutions to what often seems like an impossible situation. We are compassionate and understanding to the personal and stressful struggles of divorce and the difficulties that often arise during the course of the divorce process. Through years of practice we have learned the flexibility and efficiency often required to truly help you discover new and effective ways to cope with those struggles during, through, and after this stressful time and life-changing event.
Frequently Asked Questions and Brief Answers Regarding Divorce
1. Where can I file for divorce?
So long as you or your spouse have lived in the State of Texas for at least six (6) months, you can file for divorce in the Texas County in which either you or your spouse has lived for the immediate preceding 90-day period.
2. Do I have to show fault to get a divorce?
As stated in more detail above, Texas is a no-fault divorce state, which means that it is unnecessary to show that either party was at fault in order to obtain a divorce, and one spouse cannot stop the other spouse from obtaining a divorce. All that is necessary to obtain a divorce is to show that there is marital discord with no reasonable expectation of reconciliation. Many fault issues, however, are frequently relevant factors in certain divorce cases because they can have an impact on how the community property is divided, and/or how child-custody and visitation are decided.
3. How long does it take to get a divorce?
As stated in more detail above, if the divorce is uncontested and/or an agreement can be reached, the divorce may be finalized no earlier that the 61st day after the date the divorce petition was filed. If the divorce is contested and an agreement cannot be reached, the length of time it will take to finalize the divorce will primarily depend on the complexity of the issues involved in the case, if discovery will have to be conducted, how far apart the spouses stand on the disputed issues, and, in the event that the case ultimately must go to trial, the earliest trial date available on the Court’s docket. Most divorce cases are set for trial within 6 to 12 months after the petition is filed, but this can vary from one divorce to the next, depending on a variety of factors.
4. If my spouse and I have agreed to all the relevant terms, what is the general procedure for obtaining and finalizing the divorce?
It is common for spouses to believe that they have an agreement, but they actually have not addressed all of the necessary terms and legal requirements. Assuming all such things are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. As described in more detail above, the attorney for the Petitioner (the filing spouse) files the divorce petition and either has it served on the other spouse or the other spouse executes a Waiver of Service. The Petitioner’s attorney then drafts an Agreed Final Decree of Divorce and other necessary documents, which are reviewed and signed by the both spouses. The non-filing spouse is free to hire or consult with an attorney of his or her own choice. After the necessary papers are signed by the parties and attorneys, and the required 60 day waiting period has elapsed, the Petitioner and his attorney will appear in court for a prove-up hearing to have the court approve and enter the Decree, thereby finalizing divorce.
5. Do I need a “legal separation” from my spouse?
Some states recognize “legal separation” while the divorce proceeding is pending. As explained above, Texas does not. Filing for divorce does NOT constitute a “legal separation” in Texas. No matter what the circumstances or how long the spouses have been living apart, spouses are legally married under the Texas Family Code until the court grants a divorce and a Final Decree of Divorce is signed by a Judge and entered of record.
6. What are temporary orders?
Although Texas does not recognize a “legal separation,” temporary orders may be requested by either or both parties. Temporary Orders, whether ordered by the court or agreed to by the parties, will set forth the rights, duties, and responsibilities of the spouses during the pendency of the divorce with regard to the marital property and finances, exclusive use and possession of the marital residence, exclusive use and possession of the vehicles, the temporary residence of the children, temporary child-support and visitation, temporary spousal support, and the temporary payment of each spouse’s living expenses, bills, and debts. Temporary orders also commonly address issues such as temporary restraining orders and/or protective orders and interim attorney’s fees.
7. What is the difference between separate and community property?
As explained in more detail above, community property is all income earned and property acquired during the marriage that each spouse owns an undivided 50% interest in and to, and basically includes all property that is not separate property. Separate property solely belongs to only one of the spouses, not both. Thus, unlike community property, separate property is not property of the marital estate, and the non-owner spouse has no claim, interest, or right in or to the other spouse’s separate property. Since separate property is not considered a marital community asset, it is not subject to division between the spouses by the court in a divorce proceeding. In fact the court presiding over a divorce proceeding does not even have the authority to divide or dispose of one spouse’s separate property, rather the court’s authority is limited to merely confirming said property as the owner spouse’s separate property.
Because Texas is a community property state, it is the legal presumption that all property owned by the spouses at the time of divorce is community property. A spouse asserting a claim of separate property has the burden to prove that such property is, in fact, separate property, which must be done by tracing the original source and acquisition of such property.
The most common types of separate property is property that:
• was owned by one spouse prior to the marriage;
• was acquired by one spouse through gift or inheritance; and/or
• was acquired as recovery for certain types of personal injuries and/or disabilities.
8. How is property divided between spouses in a divorce?
Texas is a community property state, which means that each spouse owns an undivided 50% interest in and to all income earned and property acquired during the marriage, and a 50/50 split of community property in a divorce is fairly common. The actual legal standard set forth in the Texas Family Code, however, requires the Court to divide community property “in a manner that the Court deems just and right.”
This means that the Court is not required to divide community property 50/50 in every divorce case, rather the Court can, and often does, consider a variety of factors in deciding what is a “just and right” division of the community property between the parties. These factors can include, but are not limited to, the following: fault in the break-up of the marriage; disparity in earning power between the parties; disparity in amount of separate property owned by the parties; which party has primary responsibility for the children of the marriage; any special needs of a spouse and/or of a child of the marriage; the debt of the parties and/or assumption of debt; any fraud committed against the spouse or against the community estate; and so on.
When a couple has been married for any length of time, it is likely that they have obtained community assets together. If the marriage is dissolved, all of those community assets must be valued and divided in a manner that is fair and considers the needs of both parties. Property division can be a very complicated and is often an issue of contention between the parties to a divorce. Accordingly, you will need an attorney to represent you that has the skill and knowledge to obtain the best possible result on your behalf. The attorneys with The Law Offices of Steven Williams have extensive experience with divorce cases involving many different aspects and levels of property division, including large community property estates, separate property issues, and complicated property divisions.
9. Does Texas recognize Alimony?
Alimony is an allowance which one spouse pays to the other spouse for maintenance while they are separated and/or after they are divorced. The State of Texas does not recognize alimony in the traditional sense, rather Texas recognizes Spousal Support, which is different from Alimony in several ways. For instance, to receive Spousal Support after the divorce is final, the parties must have been married for at least 10 years, and, absent certain special circumstances, Spousal Support is generally only payable for a maximum term of 36 months after the divorce is final, or until the receiving party remarries, whichever occurs first.
As with other aspects of a divorce, determining if Spousal Support is appropriate and calculating the proper amounts can be difficult and confusing. Therefore, you should be sure to hire an attorney who is knowledgeable about the Texas Family Code provisions, requirements, and restrictions applicable to Spousal Support, and who has experience in dealing with Spousal Support as part of the divorce process.
10. How is child support calculated?
Unless otherwise agreed between parties, child support is calculated using a formula in the Texas Family Code. The payor’s monthly “net resources” (as that term is defined by the Code) is multiplied by a percentage determined by the number of children at issue (20% for one child; 25% for 2 children; 30% for 3 children, etc.). The payor is entitled to a reduction in the applicable percentage if he or she is also legally responsible for the support of another child or other children from a different relationship.
It is undisputed that divorce has emotional implications on the family, and the financial implications can be almost as daunting. Each state has its own unique formula for calculating child support. Therefore, it is crucial that you have pro-active legal representation that is experienced and knowledgeable with regard to the Texas child-support calculation formula, in order to ensure that the calculations are proper as forth in the Texas Family Code.
11. What is “standard” visitation?
Most divorces involving children name the parents Joint Managing Conservators; however, one parent must necessarily be named as the Primary Joint Managing Conservator in order to determine a primary residence and school district for the children. It is standard for the Possession and Access Order to provide that the non-primary parent shall have possession and access to the children at all times mutually agreed to by the parties.
Absent any such agreement(s) between the parties, however, the non-primary parent shall have possession and access (visitation) to the children pursuant to a “Standard Possession and Access Order,” which is set out in great detail in Section 153.312 of the Texas Family Code. A very summarized and short-hand version of a standard visitation order for parents who reside within 100 miles of each other provides that the non-primary parent shall have visitation with the children as follows: the 1st, 3rd, and 5th weekend of every month, beginning each such Friday at 6:00 p.m. or at the time the children are dismissed from school, and ending each such Sunday evening at 8:00 p.m. or at the time school resumes for the children the following Monday morning; 30 consecutive days each year during the Summer; and additional extended visitation periods for Spring Break, Thanksgiving, and Christmas, which alternates between each parent based on odd and even numbered years. While this standard visitation is the most common visitation schedule, it may be inappropriate or unworkable depending on your particular case. Accordingly, the visitation schedule can vary to best suit your particular situation by agreement between the parties, or the court can, for good cause shown, deviate from this standard visitation schedule.
When working toward the right visitation schedule or deciding where the children should live, it is important to have an attorney that is experienced and knowledgeable of the standards in Texas. It is also important that you have an attorney that is sensitive to the concerns of both the adults and the children, and who has the creative ability to assist the parties in designing a custom agreed visitation schedule if your circumstances require deviation from the standard visitation schedule or if you and the other parent desire to deviate from that standard schedule for whatever reasons.
12. At what age can a child choose where to live?
Once a child reaches 12 years of age, either parent may ask the Judge to have a conference in his chambers to determine which parent the child wants to live with and why. The Court will generally give great consideration to the child’s wishes. The ultimate determining factor in custody matters, however, is the “best interests of the child.”