Frequently Asked Family Law Questions

Jack E. Withem is an attorney in Houston, Texas handling divorce, alimony, adoption and child custody cases.  His goal is to insure the process is finished as quickly and painless as possible, especially when children are involved.

                                                                                                                                                                                                                                                                               
   
 
   


The following information is not intended as legal advice and it does not create an attorney-client relationship. The information given below is general in nature and individual fact situations may provide a different answer.  Divorce law is very complicated, and you should consult with an attorney before taking any action.

Can I get a Legal Separation?

Texas has no separate maintenance law.  You must file a petition seeking divorce and request temporary orders which will be valid until the divorce is granted.

How long does a divorce take?

Texas has a 60-day waiting period beginning when the divorce petition is filed.  If all issues are agreed and the parties sign the appropriate documents, the divorce can be heard after the 60 day waiting period.  If the party served with citation does not file a written answer, the court can grant a default judgment after the 60 days has passed.  If a trial or formal mediation is required more time is usually required for conclusion.

Can I get alimony?

The Court can award spousal support (alimony) and child support while the divorce is pending. Child support will continue after the divorce is granted but alimony will stop unless: (1) there has been a conviction or a deferred adjudication of domestic violence or, (2) the marriage is 10 years or longer or (3) a child of the marriage requires substantial care and personal supervision such that the custodial parent cannot support himself or herself.  Alimony can only be paid for a limited period of time unless the receiving spouse or the child is incapacitated in which case the payment can continue as long as the incapacity lasts.  With some limitations payment of alimony can be withheld by the employer from the paying party's pay and nonpayment enforced by contempt.

How much is child support?

In most cases child support is calculated as a percentage of net resources of the non-custodial parent plus the cost of health insurance for the children. For a general idea,
subtract payroll taxes for 1 person with no dependents, and health insurance cost for children of the marriage from the paying parent's  W-2 income.  Multiply the result by 20% for 1 child, 25% for 2 children, 30% for 3 children, and 35% for 4 or more children.  Add the cost of health insurance for the children of the marriage. Calculations are more complex where the paying parent is self employed or has employment perks not shown on the W-2 such as a per diem or a furnished car.  The calculations are different if there are minor children of multiple marriages or if a child has special needs.

Can I get child support if I was not married to the other biological parent?

Yes, the parentage is judicially determined and the child support is calculated in the same way as in a divorce. 

Can child support be withheld by the employer?

Yes.

How do I collect unpaid child support and medical bills?  

A motion for contempt is filed and the judge will order the nonpaying parent to appear in court at a specific day and time. If that parent is served with citation and does not appear, the court can issue an arrest warrant. A hearing is conducted and if, based on the evidence presented, the judge finds the support order has been violated he or she will issue an order designed to maximize payment as quickly as practical.  Judges can place the nonpaying parent in jail. 

How is property divided? 

Texas Family Code article 7.002 states that “the court is to divide the property in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” The Judge will award each spouse their separate property and a portion of the community property which may or may not be 50 percent. Judges consider many things including the relative earning capacity of the parties, fault in the marriage break up, and anticipated future needs.  The Judge often must be very creative in his or her attempt to be fair to all parties within the bounds of the law.

Am I entitled to a portion of my spouse's retirement?

Yes, if a portion of the retirement was earned during marriage.

What is community property and what is separate property?

This area of the law can become very complicated and cannot be covered in this short discussion.  For a broad understanding you may consider separate property is that property owned at the time of marriage or received during marriage by gift or inheritance. Community property is everything else.

What about debts? 

Debts are apportioned between the parties, however creditors are not parties to the divorce action and their rights to collect against the husband and wife are unchanged by the divorce.  A spouse has rights against a defaulting spouse. The implications of community debt incurred during the marriage is beyond the scope of this general discussion.

Can I get attorney fees from my spouse?

Attorney fees can be awarded as part of an agreement and after a trial if the Judge feels it is fair, given the case facts as a whole.

What are the procedures? 

A written petition is filed with the court requesting a divorce and requesting any necessary temporary orders and citation is served on the non-filing spouse. Citation gives the non-filing spouse official notice that the divorce has been filed and the non-filing spouse must file a written answer.  If temporary orders have been requested, the non-filing spouse can be ordered to appear at a specific time for hearing.  The Judge will issue a docket control order which will set a trial date and often provides deadlines for filing of an inventory, mediation, naming of witnesses, production of expert reports, etc.  Most Judges require mediation prior to trial.  At trial, evidence is presented to give the court credible information in making its rulings.

Is an agreement better than litigation?

Most divorces are eventually submitted as an agreement.  An agreement will be approved if the Judge feels it is fair, just, and freely entered into.  I encourage agreements as they often are cheaper and provide less emotional stress than does a trial.  If the parties cannot agree, most judges require the parties to meet with a trained mediator prior to trial.  Where mediation fails, a trial is necessary to decide those issues the parties cannot settle.  In some instances a trial is less traumatic and cheaper than negotiating with a spouse who will not, or cannot be reasonable.

What if one spouse is in the military?

A military spouse may be divorced. In some instances, in the discretion of the local Texas court, the divorce proceeding may be postponed for the time the active service member is on active duty and for up to 60 days thereafter.  The active duty member can waive this protection.  One spouse must reside in Texas or be stationed in Texas.

Am I entitled to a portion of military retirement?

To qualify for a portion of military retirement earned during the marriage, the spouses must have been married 10 years or longer while the member has been on active duty military.  The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how military retirement benefits are divided upon divorce and authorizes a direct payment of a portion of the military retirement pay to the former spouse.

 

Jack E. Withem, P.C.
Houston, TX
Phone:  (713) 983-9755
Email:  Jack@Withem.com








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