Family Law FAQ

Frequently Asked Questions About Texas Family Law

While we are always prepared to answer questions about your case, we understand that there may be times when you are looking for more general information. The following FAQ are provided to help you find quick answers to common questions about Texas family law. If you do not find the answers you are looking for on this page, feel free to reach out to a divorce lawyer at 210-761-6390 or submit your question online.

Are my employment benefits and frequent flyer miles considered marital property?

In most cases, the benefits you have accumulated through your employment during the time you were married are subject to division in a divorce. Your spouse may be entitled to one-half of the value of your pension and 401(k) from the date of marriage until the date of separation or divorce. The same may be true for your unused vacation time and frequent flyer miles. Read More 

At what age can a child decide with whom they want to live?

There is no age at which a child can decide where they want to live and impose that decision on the court. Such a major decision would be far too difficult for a child to make. Years ago, it was permissible for a parent to ask the child to sign an affidavit of preference, which was nonbinding on the court, stating a preference for the parent they wanted to live with. The minimum age for this was changed around a few times, and finally, the legislature accepted the reality that such a heavy burden should not be placed on the child. Read More

Can I file for divorce myself?

Yes. Quite frankly, however, it is not a good idea. Divorce decrees and closing documents are complex. Unless you are familiar and have worked extensively with them, the chances of drafting one successfully are low. The “prove-up” of the divorce requires that one of the spouses put on testimony that addresses specific evidentiary issues. If you fail to testify a specific requirement, the divorce will be disapproved. Read More

Can I get court-ordered alimony in Texas?

Texas law refers to alimony as “spousal maintenance.” A court can order spousal maintenance under certain specific circumstances. The couple must have been married more than 10 years, and the spouse requesting support must show that they lack the ability to provide for their minimum reasonable needs. A spouse requesting maintenance must also show that they are either disabled, caring for a disabled child or lacks earning capacity. In cases not involving disability, spousal maintenance cannot continue for more than three years.

Although a court cannot order a spouse to pay alimony, spouses can agree to contractual alimony. Payment by a spouse would be enforceable as a contract but not as a court order as in the case of spousal maintenance. 

Can I use electronic surveillance to catch my cheating spouse?

You should be very cautious about the use of electronic surveillance to monitor your spouse unless you have their consent to do so. Intercepting communications made by a spouse can expose you and your attorney to both civil and criminal liability under Texas and federal law. State and federal wiretapping laws impose criminal liability on persons who intercept communications such as emails, instant messages and telephone calls. Certain computer spyware programs can violate these wiretapping laws if they are programmed to intercept communications made in real time. But even accessing your spouse’s previously stored emails or communications can expose you to liability for invasion of privacy. Read More

Can property acquired prior to marriage be divided upon divorce?

Generally, assets owned by either spouse prior to the marriage will remain that spouse’s separate property after the marriage ends and won’t be distributed by a court as marital property. In some states, the court can define the starting date of a marriage as being earlier than the actual marriage date if it is “equitable” to do so. Read More

Do Texas courts divide property 50/50?

Not necessarily. Texas courts may only divide a couple’s community property and may not divide the separate property of a spouse. The standard used by courts to divide community property is a “just and right” division. To achieve a “just and right” division, courts consider many factors, including, for example, the difference in income and earning capacities of the spouses, the education of the spouses, the size of each spouse’s separate estate, fault in the breakup of the marriage and the attorney fees of the parties. 

Does a spouse have to prove fault on the part of the other spouse to obtain a divorce?

No. Texas is a no-fault divorce state. We simply plead “conflict of personalities that destroy the legitimate ends of the marital relationship.” No spouse has to “give” the other spouse a divorce anymore. 

Does it matter who files for divorce first?

The person who brings the case first gets to talk first. Some lawyers swear that there is an advantage to being first. Others say it doesn’t really matter. There is no negative connotation attributable to the spouse who brings the action or to the person who responds to the action. However, as one lawyer said, “First impressions are lasting impressions.” If family violence has been a part of your life, you need to take action. It is more credible for a victim of family violence to bring the action first. 

How long does a divorce take?

A minimum of 61 days. Texas law requires that the couple wait 61 days before the court can grant a divorce. This is known as the cooling-off period. 

I am the custodial parent. Can I deny visitation?

The purpose of visitation rights is for children of a divorced couple to understand they have two parents who are entitled to love their children and be loved in return. If the children come back from a weekend with their noncustodial parent and are upset or tell you they do not want to go anymore, that is not a reason to deny visitation unless their health and welfare are endangered by the visitation. If you are having a disagreement with your ex or harbor ill feelings, that is not a reason to deny visitation. However, the noncustodial parent is entitled to reasonable visitation. That means if they want to see your child in the middle of the night or are under the influence of drugs or alcohol, you do not have to permit visitation. 

I am the noncustodial parent. Can I decide not to accept visitation?

You are entitled to reasonable visitation. If you are unable to comply with the visitation schedule, you and your ex might be able to work out alternative arrangements. Remember your children deserve the love of both their parents.

I have been divorced for a while and would like to change some of the provisions in the divorce decree. If my ex and I agree, would the changes be valid?

After your divorce, you might find it necessary or desirable to modify one or more of the stipulations in your divorce decree, property settlement, or custody and support arrangements. You must follow proper procedure if you want that modification or set of modifications to be valid. An experienced family law attorney can work with you to ensure your desired changes are valid.

May I record conversations with my spouse?

It is not illegal to record a conversation in Texas if you are a party to the conversation. But this is not true in all states, so you should not do this outside of Texas. Also, you should not record conversations between your spouse and your children or other third parties. 

May I stop paying child support because my spouse will not give me my visitation and access?

You may not stop paying child support. If you withhold child support because a spouse will not allow you to exercise your visitation, you are taking the law into your own hands and may be held in contempt of court.

If you are not receiving the child support you are owed, contact your divorce lawyer at 210-761-6390. 

May I withhold visitation because my spouse will not pay child support?

You may not withhold visitation. If you withhold visitation because a spouse will not pay their child support, you are taking the law into your own hands and may be held in contempt of court.

If you are not being allowed to exercise your visitation rights, contact your divorce lawyer at 210-761-6390. 

My income has increased since the court-ordered child support. Can I be penalized for not paying more because of my increased income?

In most situations, child support increases are only retroactive to the date of the filing of a motion to modify child support. However, many courts and child support collection agencies require noncustodial parents to report their income on a regular basis to ensure smooth modification proceedings. If your orders do that, and you failed to do so, you may face retribution by the court. If your orders do not require such, normally there is no obligation to pay anything more than what was ordered. 

What factors does the court consider to divide marital property?

Texas courts consider the following criteria in property division:

  • The length of the marriage
  • Either person’s prior marriages
  • Each person’s age, health, station, income, vocational skills, employability, estates, liabilities and needs
  • Contribution by one spouse to the education, training or increased earning power of the other spouse
  • Opportunity to acquire future income and assets
  • Sources of income, including medical, retirement, insurance and other benefits
  • Services rendered as a parent, wage earner or homemaker
  • Value of each person’s property
  • Standard of living established during the marriage
  • Tax consequences of the distribution
  • Custodial parent designation

What happens to my retirement benefits in divorce?

Retirement plans and employee benefits that have accrued during the marriage may be divided by the court between you and your spouse. However, those benefits that existed at the time of marriage remain a spouse’s separate property and are not divided upon divorce so long as there is documentation of the value of the benefit prior to marriage. A qualified domestic relations order (QDRO) is used to divide a retirement plan that has accrued during the marriage. Stock options, pensions, 401(k) accounts and bonuses are also divisible upon divorce. 

What if my spouse controls all of our money?

When a spouse files for divorce, they can request temporary orders to obtain temporary spousal support, child support and interim attorney fees. Temporary orders can also impose a temporary visitation schedule for a parent, prevent the sale or transfer of community assets, and require the disclosure of the financial information of the spouses, among other things. 

What if my spouse has been violent with me?

Regardless of whether you have filed for divorce, a court can issue a protective order restricting your spouse from committing family violence, communicating with family members, visiting a residence or place of work, and owning a firearm. The court can impose fines, imprisonment and even criminal penalties on a party for violating a protective order. A court can also issue a restraining order, which can order a person to refrain from certain behavior, including hiding property and making harassing telephone calls. 

What is the procedure for adoption?

In Texas, the court’s primary concern is the best interests of the child. An experienced attorney familiar with the state’s adoption procedures can help ease the adoption process.

Whether a child is placed in a new home privately or an adoption agency, a petition for adoption must be filed. The child is placed in the custody of the new parents for six months to one year before the adoption becomes final. This allows home study – the monitoring of the child’s welfare in the new home through a court’s authorized agency visits to the home. At the end of the period, a court hearing reviews the parents’ qualifications and, if satisfactory, grants a permanent decree of adoption. In this manner, the child gains all the rights of a natural child of the adoptive parents and a new birth certificate is issued, showing the adoptive parents as the child’s legal parents.

What percentage of Texas divorce cases are settled versus tried in the court?

Nearly all of them. It is the policy of the state of Texas that parties are to try and resolve their conflicts without court intervention other than granting the divorce. The Texas Family Code requires that each party sign an alternative dispute resolution clause attached to their initial pleading. It usually takes significant legal action to bring the parties to a mutually agreeable resolution. 

How Can I Get Answers To My Questions?

Call our family law firm at (210) 229-2088 or submit your question online.