Frequently Asked Probate Questions

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 with children 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. To receive child support or temporary alimony, you must file for a 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.

How much is child support?

n 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 the child or children from 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. Calculations are more complex where the paying parent is self employed, has employment perks such as a per diem or furnished car. The calculations are different if there are minor children of multiple marriages or if a child has special needs.

What about child visitation?

The Texas Family Code provides very liberal visitation for the children. Specific times are provided in the divorce decree and visitation is allowed at times agreed to by the parties. Generally, visitation is allowed on the first, third, and fifth weekends from Friday at 6:00 P.M. to 6:00 P.M. Sunday or on Monday morning, some Thursday nights, about two weeks at Christmas, alternating Thanksgiving weekends and 30 days in the summer and other holidays throughout the year. The statute is very detailed and can be found at:

Can child support be withheld by the employer?


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.

What about debts?

Debts are apportioned between the parties, however creditor's rights against the husband and wife are unchanged. The implications of community debt after 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 the settlement if the Judge feels it is fair given the case facts as a whole. In some instances a spouse can be ordered to pay interim fees during the pendency of the divorce.

What are the procedures?

A written petition is filed with the court requesting a divorce and requesting any necessary temporary orders. Citation is served on the non-filing spouse which is official notice to the spouse 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.

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.

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 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 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 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 a military retirees pay to the former spouse.

Jack E. Withem, P.C.
Wells Fargo Bank Building

13201 Northwest Freeway, Suite 512
Houston, TX 77040-6023

Phone: 713 983 9755
Fax: 713 849 9240