Texas Divorce: How Long Will It Take to Get Divorced and Other Important Facts

January 28th, 2012

To file for a divorce in Texas, you must be a Texas Resident for 6 months, and you must have lived within the county you plan to file in for at least 90 days immediately prior to filing of your divorce petition. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.

Texas does not recognize legal separations.

It is possible to get a divorce even though the other party does not want the divorce to take place. Texas is a “no fault divorce state.” “No fault” means that one spouse does not have to prove the other spouse has done anything wrong in order to obtain a divorce. You cannot be held to a marriage because your spouse does not want to sign or refuses to participate in the divorce process. The court will enter divorce orders even if the other party refuses to sign them.

Texas requires a minimum 60 day waiting period before any divorce can be finalized. The 60 day period begins to run from the time the Original Petition for Divorce is actually filed with the court. In other words, the shortest time it will take to finalize a divorce in Texas is 61 days. On occasion, in domestic violence cases, there is an exception to the 60 day rule. If the parties are in agreement, a divorce proceeding can be finalized immediately following the sixty-day waiting period. On average, however, the time period is more likely to run 90 to 120 days in an uncontested divorce due to the crowding of court dockets and the time necessary for counsel to draft necessary legal documents and obtain the agreement of both parties regarding the wording of the final documents. If the parties are not in agreement, the time necessary to finalize the divorce will depend on the conduct of both parties and their attorneys, the court’s schedule, the matters in controversy and the complexity of the contested issues. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are deeply in opposition to an agreement on some or all of the core issues may take anywhere from several months to several years to complete.

As to the division of marital assets, Texas is a community property state. For more information on community and separate property, see our blog, Divorce: What is separate property and what is community property.

It is important to remember that, although the statutory waiting period to finalize a divorced is 60 days, it is more likely than not that your divorce will “not” be finalized on the 61st day following the filing of your petition for divorce.

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My Divorce is Costing Me What? Why is This Divorce Costing So Much?

February 15th, 2011

Financial costs of divorce may often be significant. Divorce lawyers, like any other professionals, are paid according to their skill, training and experience. In Texas, one can expect to pay an advance deposit from $2,500 to $25,000 depending on the complexity of the legal issues involved, as well as the quality and expertise of counsel selected. In addition to the legal fees, some cases require “expert testimony” regarding the value of certain significant assets, i.e. business interests, the marital residence, rental properties, art work and more.

One reason most experienced divorce lawyers want a substantial retainer is that once an attorney files an appearance, they are charged with duties in their role as an officer of the court. Under law and court procedure an attorney must make appearances and file specific legal documents with little or no discretion depending on the opponent’s conduct. Initial filings and other documents may appear deceptively simple, but can challenge even the most patient person. The devil truly is in the details, especially where haggling parties look for disagreement. Even minor issues can blow up, and evolve into unnecessary expense.

Divorces involve complicated issues and many times it is necessary to have a temporary hearing sooner rather than later to sort out legal and monetary issues for the pendency of the divorce proceeding.  Who will continue living in the home?  Who will make mortgage payments?  Who will make payments on automobiles?   Who will pay certain credit cards?  Who will pay utilities?  Who will maintain the property?  Who will be responsible for the debts?  All questions must be carefully considered and weighed out.

In divorces with child related issues there are more complicated factors to be considered.  Who will receive primary custody of the children? Where will the children live and how often?  What school will the children attend?  How will their education be paid?  How much child support will be paid? What visitation schedule will work for the parents and the children?  How, when and where will the child exchange take place?  Which parent will maintain health insurance?  Will the child’s residence be restricted to a particular geographical area? 

In all cases, marital assets must be divided; and even if there are few marital assets and only marital debt, there remains much to fight about, or resolve.

The state of Texas makes it unethical for lawyers to take a divorce action on a “contingency fee” basis. That leaves only two ways for a divorce lawyer to be paid: by the hour, which is the most common; or on a flat fee basis. Hourly fees in the Dallas/Ft. Worth metroplex area for a divorce lawyer range anywhere from $250 per hour to $550 per hour and up, depending on your choice.

In the cases where one party has a distinct financial advantage, the economically disadvantaged party can apply for temporary attorney fees and costs to be paid immediately by the party in control of the resources provided a fund is available for such use. In a proper case, such temporary motions often are granted by the trial court in order to level the playing field.

After every hearing, whether it concerns child related issues, marital assets, debts of the parties, or property owned by the parties, an order must be drawn by counsel based on either the court’s decision or the agreement of the parties.  Many times these orders involve the drafting of further legal documents such as Deeds of Trust, Deeds of Trust to Secure Assumption; Special Warranty Deeds, and Real Estate Lien Notes relating to the parties home; Powers of Attorney to transfer title of automobiles; Wage Withholding Orders for the withholding of child support; and Austin forms (required by the Bureau of Vital Statistics in every divorce action).  Often a Qualified Domestic Relations Order (QDRO) is necessary to divide retirement plans, accounts, pensions and the like.  These are just a few of the necessary documents required in some divorce actions.

Bottom line is: the less the parties fight the less they will pay. Lingering animosities do not expedite resolution. Courts do not want to hear “he said/she said.” Whether that is right or wrong is for a social commentary, not a legal guide. That is why there are ‘irretrievable breakdown’ divorces.

Other factors that affect the cost of divorce are: whether the divorce is adversarial; how much you pay hourly for your legal counsel; if you and your spouse are battling over child custody issues involving children; the number of marital assets and debts you have to deal with; and whether your spouse’s attorney is unnecessarily aggressive and adversarial, without purpose.

When selecting a divorce lawyer know what you are looking for.  Your counsel should be a person in whom you can put your total trust — after all your emotional health, the emotional health of your child(ren) and potentially the emotional health of your grandchildren could be at issue. The way to keep divorce costs under control is to select the right lawyer and to force your intellect to overrule your emotions when making decisions.

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Rights and Duties of a Parent Joint Managing Conservator in Texas

April 25th, 2010

Rights and Duties of a Parent Joint Managing Conservator in Texas — Waiver
To the Guidelines is a Matter of Court Discretion

As a joint managing conservator of a child in a divorce proceeding in Texas, unless special circumstances arise justifying a variance from the Guidelines, the Court will normally order guideline code rights and duties and a parent will be awarded the following:

1.the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child.

2.the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.

3.the right of access to medical, dental, psychological, and educational records of the child.

4.the right to consult with a physician, dentist, or psychologist of the child.

5.the right to consult with school officials concerning the child’s welfare and educational status, including school activities.

6.the right to attend school activities.

7.the right to be designated on the child’s records as a person to be notified in case of an emergency.

8.the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.

9.the right to manage the estate of the child to the extent the estate has been created by the parent/conservator or the parent/conservator’s family.

10.the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child; and

11.the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter.  IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate.  IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

12.the duty of care, control, protection, and reasonable discipline of the child.

13.the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.

14.the right to consent for the child to medical and dental care not involving an invasive procedure.

15.the right to direct the moral and religious training of the child.

16.Only one parent shall have the exclusive right to designate the primary residence of child in a specific geographical area, which is commonly the county in which the child currently resides and the contiguous counties thereto.

17.the right to consent to medical, dental, and surgical treatment involving invasive procedures may be subject to agreement, an independent right or an exclusive right;

18.the right to consent to psychiatric and psychological treatment of the child may be subject to agreement, an independent right or an exclusive right;

19.Only one parent shall have the exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;

20.the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child may be subject to agreement, an independent right or an exclusive right;

21.the right to consent to marriage and to enlistment in the armed forces of the United States may be subject to agreement, an independent right or an exclusive right;

22.the right to make decisions concerning the child’s education may be subject to agreement, an independent right a joint right or an exclusive right;

23.except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child may be subject to agreement, an independent right or an exclusive right;

24.except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government may be subject to agreement, an independent right or an exclusive right; and

25.the right to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parent/conservator may be subject to agreement, an independent right or an exclusive right.

In accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.  The Court will therefore normally establish the primary residence of the child in the county where the child currently resides and/or a contiguous county thereto, and the parties shall not remove the child from such county for the purpose of changing the primary residence of child until there is a modification to the existing order of the court of continuing jurisdiction or a written agreement signed by the parties and filed with the court.

The geographical restriction on the residence of the child may be lifted or modified if, at the time the primary parent with the right to establish residence wishes to remove the child from the county for the purpose of changing the primary residence of the child, the other parent does not reside in that county or a contiguous county thereto.

Time constraints, employment issues of the primary Joint Managing Conservator, and other material factors may come into play when a Joint Managing Conservator requests waiver of the geographical restrictions.  It customarily is a very difficult, but not always insurmountable, burden to achieve a geographical restriction waiver.  The success, consistency and regularity of the non-primary conservator’s possession and access to the child is a factor the court will view in making a ruling.  Frequently, an agreement to adjust the amount of support and/or transportation costs comes into play in resolving such disputes.

For professional legal counsel on family law and divorce issues in the DFW Metroplex area, contact Dallas divorce attorney Mark Nacol.

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Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.