Family Law FAQs
Please note that these answers are general in nature, are not intended to address a specific legal question, and do not constitute legal advice.
1. How long does the process take? If the process is uncontested (parties have reached an agreement on major issues), Texas law requires a minimum 60-day waiting period from the date the divorce is filed until it is heard, Tex. Fam. Code §6.702. If the divorce is contested (parties cannot agree over major contested issues), the case could take 6 months to over a year until final.
2. What are the major issues encountered in a divorce?
Child custody. A determination of which parent is better suited to be the primary caregiver for the child. This does not mean that one parent is a better parent, only that one parent is better suited to be the principal person involved in the day-to-day living activities of the child, Tex. Fam. Code §153.311.
Visitation. As a matter of practice, we prefer to call visitation a parent’s schedule. The main issue is should the non-custodial parent get standard visitation, extended visitation, supervised visitation or can the parents agree on a unique visitation schedule? Tex. Fam. Code §153.251 et. seq. The Family Code outlines a standard visitation schedule for the non-custodial parent. In essence, the non-custodial parent is presumed to get the first, third and fifth weekend of each month, Wednesday night visitation for dinner (usually 6:00 to 8:00 p.m.) and a split of all holidays. For example, the mother might get the child one year for Thanksgiving and the father the next. The child’s birthdays are normally split and the mother gets the child on Mother’s Day and the father gets the child on Father’s Day. (Extended visitation is a relatively new concept which permits a non-conservatory parent to have the child from the end of school on Friday until Monday morning when the child is returned to school. Wednesday overnights are also provided for.)
3. How is custody determined? Many factors go into determining custody, but essentially, the court determines what is in the best interests of the child. Judge Fred Moore, a retired district court judge, used what he called the “breakfast test”:
who cooks breakfast for the children;
who goes to PTA meetings; and/or
when a child is hurt, who does he/she run to?
Other factors can include:
whether one or both parents are involved in alcohol and/or drug abuse;
whether a parent has put the child in danger; and/or
whether a child has a marked preference for a parent.
When custody is at issue, the court will generally order a social study—an evaluation of the parents, home and children conducted by a licensed social worker or other appropriate individual. The social worker is experienced in family law matters and may have worked in juvenile probation, as a probation officer, a caseworker for child protective services, or be a psychiatrist or psychologist. The social worker will normally meet with the children at a neutral site, such as the school. They will observe the inter-action between the children and parents, interview the parents and observe physical surroundings. Please expect the social worker to ask tough questions. Their job is to make a recommendation as to what is in the best interests of the child.
After the social worker has made recommendations, we generally meet with the other side and try to mediate the case. Mediation is the process whereby we, the other side and a neutral third party attempt to reach a settlement. Often the third-party mediator is a lawyer or person experienced in resolving family law disputes. Once again, the key issue is what is in the best interests of the children. The mediation process helps craft a solution which fits the needs of the individual parties rather than having a judge impose his/her view on the parties.
4. Must we mediate? The local rule in Hays and surrounding counties requires mediation prior to a final hearing on a divorce or custody matter.
5. How much will this cost? This is a matter addressed during the initial attorney-client meeting. Obviously, uncontested divorces will be less expensive than contested divorces.
6. What is community property? Ordinarily, any piece of property that is acquired during the course of the marriage and is not acquired as a gift or as a result of an inheritance.
7. What is community debt? Generally speaking, all debt incurred during the course of a marriage which is not specifically listed as separate property debt.
8. How does community property affect me? Community property is usually equally divided, half going to each spouse and half of the debts going to each spouse.
9. How is child support set? Child support is commonly set using guidelines found in Texas Family Code §154.061 et seq. Generally, if you have one child you pay 20% of your net resources based on your income as calculated by the Attorney General, and add 5% for each child thereafter.
10. What happens if I don’t pay or get behind on child support? Texas law does not forgive non-payment of child support. As a result, you must make every effort to be current on child support. If you fall behind, there are various methods for catching up. These include reaching an agreement with your ex-spouse, reaching an agreement with the attorney general, or moving to modify your support obligations.
11. Who pays Health Insurance? Typically, the non-custodial parent pays health insurance and each party pays 50% of the uninsured costs (such as non-prescription medication, copayments and deductibles).