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Can we separate legally?​

No. Texas law does not recognize “legal separation.” However, if both spouses are not quite ready for a divorce, both spouses can enter into an agreement called a “Partition and Exchange Agreement” to divide their property. Just remember that even though you have a “Partition and Exchange Agreement” it does not mean that you are divorce, you are still married.



Are there any residency requirements to get a divorce?

Yes, at least one of the spouses must have continually resided in the State of Texas for the preceding six (6) months and domiciled (lived) in the county for ninety (90) days before the divorce lawsuit is filed.

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Does it matter who files the divorce first?​

Yes, slightly. The spouse who files first, called the “Petitioner” is the one that gets to present their evidence first before the Court during the trial. The Petitioner spouse sets the mood and gives the first impression of the case to the judge or jury. The other spouse is called the “Respondent.” The Respondent through his/her attorney then ends up explaining and giving reasons for a bad impression portrayed by Petitioner of Respondent. So, it is always best to file first if at all possible.

Are there any residency requirements to get a divorce?

Yes, at least one of the spouses must have continually resided in the State of Texas for the preceding six (6) months and domiciled (lived) in the county for ninety (90) days before the divorce lawsuit is filed.



​My spouse tells me they will not give me a divorce, can I still get divorce?



Yes, you can get a divorce, even if your spouse tells you he will never sign a divorce. One of the grounds for a divorce in Texas is called the “Insupportability” ground or “No Fault” ground as it is more commonly known. The court will grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. This usually means, “I cannot stand you anymore and I want a divorce” or “I simply do not want to be married to you anymore.”

How long will my Divorce take?

How long your divorce will take is determined by the following factors:  (1)  how much fighting there is between the spouses in reference to the children, child support, division of property, and division of debt;  (2) the Court's calendar (docket); (3) your attorney's calendar; (4) the other spouses attorneys calendar; and (5) the Yours and the spouse's calendar.  The Court will usually set the case for trial based on their calendar/docket.  If the attorney's have a conflict in reference to that case, they will let the court know and have it reset to another date.  All this has to be done ahead of time.  If there is no fighting and the divorce is agreed and uncontested, the divorce can be "proven-up" on the sixty-first (61) day after the divorce is filed with the court.  The "Prove-up" of a divorce means that at least one of the spouses goes before the judge and gives a short testimony regarding the divorce agreement.  The judge will look at all the pleadings and documents filed with the court and will finalize the divorce by declaring the parties to be divorce and confirming their divorce agreement.



How Much will my divorce cost me?

How much your divorce will cost you depends on many factors.  The most important factor that makes the cost go up is how much fighting or conflict there is between the spouses.  Usually the fighting occurs in (1) who will get primary custody of the children;  (2) how much child support one of the spouse's will pay;  (3)  property division; and (4) who will pay for the debt.  Other factors are (A)  whether a Temporary Order is necessary during the divorce proceeding;  (B) whether formal or informal discovery is needed, (C)  whether mediation is conducted; and (D) whether there is a need to go to trial on the case.  Usually, the attorney will charge on an hourly basis, the more fighting and disagreement there are, the more time the attorney will spend on the case, and the higher the cost of your divorce will be.

Can we get Joint Custody of the Kids?

Yes, as long as it is in the child's best interest.  Joint Managing Conservatorship is the formal name for a joint custody and is usually what most parents will get.  One parent is named the primary Joint Managing Conservator.  the Primary Joint Managing Conservator will be the one that determines where the child will reside and receives child support from the other parent.  The other parent is called the Possessory Joint Managing Conservator and is the parent who has visitation of the child usually every first, third, and fifth weekend of the month and has to pay child support for the child.  All this is done in the standard possession order.  However, there can be many variations of the standard possession order that accommodates the parties' needs and the child's needs.  If there is no agreement among the spouses as to visitation, then the courts will make the determination and they have wide discretion in setting visitation and access to the children based upon the best interest of the child.  The courts will usually follow the state policy of ensuring that both parent have frequent and continuing access to the children, as long as this is in the child's best interest.







Do we have to follow the Court order when it comes to the visitation of the children with the other parent?

It is always best to follow the Order.  However, you do not have to follow the Order if both parties agree in advance to a different time of possession and visitation of the child If there is a disagreement, then follow the order.  Most orders will have this language in it:  "IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order"  Sometimes, you might want for the child to attend a party of the extended family and the week of your possession/visitation with the child is not on that weekend when the party will be held.  If you can get the other parent to agree to you exchanging that particular weekend for another, then it is okay.  It shows that both parents are working in the best interest of the child.

How much Child support will I get or have to pay?

In Texas, child support is based on state guidelines.  The percentages are applied to the paying parent's net income.  These percentages are:



20 percent of net resources for one child:

25 percent of net resources for two children.

30 percent of net resources for three children

35 percent of net resources for four children

40 percent of net resources for five children



Of course there ar other factors that the court takes into consideration in determining child support such as if the parent if ordered to pay child support is already being ordered to pay child support for another child in another household or several children in different households.  The parent ordered to pay receives credit for child support he is paying for the support of other children and the percentages are modified to reflect the credit.



Can I get Alimony or spousal support?

Texas law does not recognize "Alimony" but we have something very similar called "Spousal Maintenance."  It is remedial in nature.  In order to get spousal maintenance, the spouse requesting must qualify for it.  The courts use many factors in analyzing whether to order spousal maintenance.  New law went  into effect in September 2011 that has many changes to the spousal maintenance.  Make an appointment with Melissa Ortiz, Attorney at Law and she will be able to analyze whether you qualify for spousal maintenance.

At what age can a child decide with what parent they wish to live with?

Normally the Court will refuse to get the children involved in choosing sides in a divorce.  The Court will even forbid the spouses from talking about the divorce with the children of the marriage because it is damaging to the children.  However, a child who is 12 years of age or older can make a recommendation to the court of who he/she wishes to live with.  This recommendation of the child's wishes is only a factor that the Court considers in determining who the child's primary custodial parent will be.  Although this recommendation is persuasive, it is not binding on the court.  Sometimes, it is not what the child wants but what is best for the child.



How is Property divided in Texas?

In Texas there is a presumption that all property acquired, purchased, or earned during the marriage is Community Property.  This means that both spouses have equal ownership rights to the property.  This type of property includes the marital home, cars, boats, cash in bank accounts, retirement/401K accounts, etc.  Also, any debt that was entered into or acquired during the marriage is presumed to be community debt and both spouses are presumed to be liable for it.  A divorce does not change the contract entered into with third parties such as creditors.  An example of this is the mortgage note that was entered into by both spouses during the marriage and purchase of the marital home.  At the conclusion of the divorce, one of the spouses gets the marital home along with the responsibility to make payments on the mortgage note.  As time passes, the spouse that got the house, stops making payment on the mortgage note for whatever reason.  Guess what. both spouses are sill liable and the mortgage company can come after the spouse that did not get the house during the divorce because this was a contract entered into with a third party creditor and the divorce does not change any responsibility that each spouse has to pay it.  The only way to solve this is if the person that gets the house refinances only under his/her name right after the divorce proceedings are concluded.



Am I entitled to get half of all of the property in a divorce?

Texas gives the Courts the authority and discretion to divide the community property in a just and right manner. Exactly what this means carries from case to case.  Most people think that a just and right division is a 50/50 split but the courts can do a 60/40 or 70/30 and still believe that in their discretion that it is a just and right division.  The Courts utilize many factors in doing the division of property.



How can I modify my Child Support Order?

In order to modify an existing order, the following must be proven in court (1) you must show that the circumstances of the child or a person affected by the order have materially and substantially changed since the date the Court signed the Order you wish to modify;  or (2)  it has been three years since the Order was signed and the monthly amount of child support ordered under the Order you wish to modify differs by either 20 percent or $100.00 from the amount that would be awarded in accordance with the child support guidelines.



My ex-spouse refuses to let me see my kids in violation of the Order?

If your ex-spouse is refusing to let you visit or have possession of the children that are subject to the Order that states the terms and condition of possession, you can file an enforcement action against the ex-spouse.  It is very important that you keep good records of the times and dates the ex-spouse violated the terms of the Possession Order before filing an Enforcement action.  It is also recommended that you call the police and present your Certified Order to them and ask that they knock on the door and request that the ex-spouse surrender the children based on the terms of the Possession Order.  If the ex-spouse refuses to surrender the children to the law enforcement officer, then ask the law enforcement officer to make a police report.  This police report can be used in the enforcement proceeding.  If the Court finds the ex-spouse in contempt for a violating the Possession Order, you can ask for attorney's fees and court costs from the ex-spouse, as well as make-up time for the time that the ex-spouse did not allow you to have possession of the children.  If the ex-spouse has already been found in contempt in multiple times before by the Court, you can request that the ex-spouse be put in jail and/or that you get primary custody of the children.  It is at the discretion of the court to punish the violator as it sees fit.