Frequently Asked Questions About Divorce
What is a divorce?
A divorce is when you legally dissolve your marriage.
What is common law marriage?
In Texas, you are common law married in one of two ways – (1) execute a declaration of informal marriage before the County Clerk or (2) over 18 years old and (a) agree to be married and after that agreement (b) live together in Texas; and (c) hold yourself out to the community as husband and wife.
Do I have to get a divorce if I am common law married?
Yes – (1) if you executed a declaration of informal marriage or (2) if your partner believes you were common law married and proves in Court through clear and convincing evidence that (a) you agreed to be married; (b) then cohabitated in Texas as husband and wife and (c) held yourself out to the community as husband and wife.
Should – If you believe you were common law married and have children together or have accumulated substantial property together.
NOTE: There is a rebuttable presumption that no common law marriage occurred if it has been longer than two years since your separation. So, if you have been separated two years or longer, and if you both agree that you were never married, and neither of you ever represented to others that you were husband and wife, then a divorce is probably not necessary. However, it is best to be sure. Please give us a call if you would like to discuss the specifics of your situation in greater detail.
What is the cost of a divorce?
The cost depends on many factors and varies from case to case. Basically, the cost will be less if you and your spouse are able to quickly reach an agreement regarding alimony, child custody, child support, visitation, property division, and allocation of debt. An uncontested divorce will cost less than a contested divorce. Unfortunately, you may discover that what you thought would be an uncontested divorce soon becomes a very hotly contested divorce.
What is the difference between a contested and uncontested divorce?
The difference is whether or not you and your spouse are able to reach an agreement as to all aspects of the divorce. A contested divorce is when you both are not able to agree on certain aspects of the divorce. An uncontested divorce is when you both are able to agree that a divorce is necessary and agree to all aspects of the divorce, including alimony, child custody, child support, visitation, property division, and allocation of debt.
What are the steps necessary to obtain a divorce?
Original Petition – An Original Petition is filed to inform the Court and your spouse that a divorce is being sought. Your spouse will be served with the Original Petition, or they will have to sign a Waiver of Service.
Temporary Orders, Temporary Restraining Orders, and/or a Protective Order are filed – These are orders issued by the Court that dictate how the parties will proceed until the divorce is finalized.
Discovery – is the process of gathering information needed to finalize the case. Discovery is a general term to describe the different ways you are able to gather information. Such as you may serve Interrogatories (written questions), Request for Production (seek documents), and/or Request for Admissions (seek admissions as to specific facts).
Informal Settlement Conference – When you and your attorney meet with your spouse and their attorney and attempt to settle the case.
Mediation – The is more formal than the settlement conference and is more expensive as you will have to pay another person, the mediator, to meet with you, your attorney, your spouse and their attorney and try to facilitate a settlement of the case.
Agreed Final Decree and Prove-up Hearing – If you are able to reach an agreement, you will have an Agreed Final Decree that will you prove-up before the Court. Prove-up means that you will go before the Court and testify as to the terms of the agreement. This is a simple hearing before the Judge that usually does not take very long.
Trial – If you are not able to reach an agreement, you will have to set the case for trial before the Judge or a Jury. Trial is risky as you are letting someone else decide the outcome. It is usually very expensive and stressful. You will have to prepare for trial with your attorney and usually call witnesses to testify at the trial.
How long will it take to finalize my divorce?
Typically, you will have to wait a minimum of 60 days to get a divorce in Texas. This 60 day waiting period is considered a “cooling off” time. The couple must wait 60 days after the divorce petition is filed to finalize the divorce. However, how long it takes your particular case to finalize depends on many factors, such as how contested the divorce is and whether there are contested child custody and/or child support issues and/or property contested issues.
Is there an advantage to filing first?
Filing first gives you a slight procedural advantage over your spouse. The person who files first gets to present their case first in court – meaning you get to talk first. Also, if you suspect your spouse may hide assets or incur debt if they learn you are going to file for divorce, it is best to file first and request a court order that prohibits hiding assets or incurring debt. Filing first can also provide you immediate protection if you or your children are being physically abused. In such situations, we request a restraining order and/or protective order for our clients.