Capitaine, Shellist, Peebles & McAlister, LLP

405 Main Street, Suite 200
Houston, TX 77002
Phone: 713-715-4500
Fax: 713-715-4505
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Family Law FAQs


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.

We have been living together, are we married under Texas Law?
Texas law recognized a common law or informal marriage. A common law marriage can occur in two ways (1) by filing a declaration of informal marriage with the county or (2) by entering into a (a) verbal agreement to be married, (b) living together (cohabitating) thereafter, and (c) representing to others that the relationship is that of husband and wife. If you think you have an informal marriage or common law marriage, you have to file a divorce action within two years of separating from the other person. If you do not file within these two years, the law presumes there was no marriage. An Informal or Common law marriage is a legal marriage in every aspect and if a divorce lawsuit is filed within the two years, it will be treated like a regular divorce. Persons under the age of 18 years cannot enter into a common law or informal marriage.

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 his 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 he 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.”

Do I have to prove who is at fault in order to get divorced?
No, you do not have to prove who is at fault in order to get a divorce. Texas law does allow a divorce to be granted for other grounds, such as adultery, abandonment, etc… However, most of the time the “No Fault” ground is usually used and the fact that the other spouse committed adultery is brought to the court’s attention to get a better outcome in the division of property. There are other grounds such as abandonment, living apart, etc.

Can we get divorce without doing child custody and child support?
No. If there are children born or adopted during the marriage and there are no existing orders regarding those children, child custody and child support has to be determined in the divorce proceedings. However, if the Office of the Attorney General has already established child custody and child support, then a divorce can be done and the previous Orders dealing with child custody and child support are brought to the court’s attention in the divorce proceedings.

I want to get my divorce done right away?
Most people want to get divorce right away. However, there is a “cooling off period” of Sixty (60) days from the date you filed the divorce papers with the Court, where you cannot get divorce even if both parties have agreed to everything and all the documents have been signed and filed with the Court.

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, to child support, to the division of property, and division of debt; (2) the Court’s calendar (docket); (3) your attorney’s calendar; (4) the other spouse’s attorney’s calendar; and (5) 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 in front of 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 parent called the Joint Managing Conservator. The Joint Managing Conservator will be the one that determines were the child will reside and receives child support from the other parent. The other parent is called the Possessory 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 parents have frequent and continuing access to the children, as long as this is in the child’s best interest.

Can I get Sole Custody of the kids?
Yes, as long as it is in the child’s best interest. Sole Custody is usually granted when there is family violence committed by one spouse against the other spouse or a child of either spouse. Visitation/Possession of the child by the parent that is the one that has been convicted of Assault on a Family member can be restricted to a supervised visitation. Harris County has a program that allows for the supervised visitation to take place through the agency. Technological communication has been very helpful, such as Skype. Of course, all of this is based on a case-by-case basis and depends a lot on the facts of each individual case.

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 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; and
40 percent of net resources for five children

Of course there are other factors that the court takes into consideration in determining child support such as if the parent 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.

Who pays for the health insurance or medical support of the children?
The parent who designated the Possessory Conservator is the one that is usually ordered to pay medical support or to maintain the children covered under a health insurance provided through his employment or union or private insurance. If the cost of health insurance is not available at a reasonable cost to the Possessory Conservator and health insurance is available at a reasonable cost to the Joint Managing Conservator, then the Joint managing Conservator is ordered to maintain health insurance on the children and the Possessory Conservator is ordered to reimbursed the Joint Managing Conservator for the cost of the health insurance on the children. If health insurance is not available at a reasonable cost to either parent, then the Possessory Conservator parent is ordered to pay cash medical support and the Joint managing Conservator parent is ordered to apply and maintain coverage through CHIPS or government assistance program. The amount ordered for medical support can be up to 9% of net income of Possessory Conservator and this is considered reasonable.

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 it must qualify for it. The courts use many factors in analyzing whether to ordered spousal maintenance. New law went into effect in September 2011 that has many changes to the spousal maintenance.  Make an appointment with Capitaine, Shellist, Peebles & McAlister, L.L.P. and the attorney’s will be able to analyze whether you qualify for spousal maintenance.

Can I get a name change for my children?
If the other parent does not agree to the name change of the child, it is generally not possible to change the name of the child.

Can I get my name change back to my maiden name?
Usually it is the wife that needs the name change back to her maiden name. If you request the name change for the wife, the courts will grant it as long as the wife (1) is not changing it to avoid prosecution and/or (2) trying to defraud creditors.

If I am the husband, can I get a name change during the divorce?
Yes, I have done name changes for husbands during a divorce proceeding. However, an FBI criminal background check must be conducted and received by the court before the final divorce hearing is conducted in order to get it done. Also the husband must testify that he is not changing his name (1) to avoid prosecution and/or (2) trying to defraud creditors.

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 on 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 still 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.

What is Separate Property?
Separate Property is any property that was acquired before the marriage by purchased, gift, or inheritance. Separate Property can also be property that was acquired during the marriage by gift or inheritance to that particular spouse. It is the spouse who is claiming that a particular property is Separate property that has to prove that the particular property was acquired before the marriage or by gift or inheritance before or during the marriage to beat the presumption of Community. Normally, the tool that is used to prove a property is Separate is called “Tracing.” This means that you have to trace the property all the way back to the date it was acquired, including the funds used to acquire it. It is very important to keep detail records for traicing.

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 varies 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.

What is a Retainer Fee?
A retainer fee is a deposit of funds entrusted to the family law attorney houston tx at the beginning and/or throughout the lawsuit. As the attorney works on the case, the time he/she spends working on the case is billed to the retainer on deposit. The client will usually receive a statement of the time and expense the attorney has accumulated on the case and the amount that was billed to the retainer.

Why do attorneys require a retainer fee upfront?
The retainer fee is requested to make sure that the attorney gets paid for the legal services that attorney will provide you during the representation. The attorney has to make a living and be able to pay his employees, bills, and office expense. The retainer insures the attorney that he/she will be compensated for his legal services when provided.

What is the difference between a Flat Fee and a Retainer Fee?
A Flat Fee is a set fee the attorney charges the client for representing the client in doing the entire divorce or lawsuit. A Retainer Fee is an amount requested to be on deposit but it does not mean that that is the entire amount the attorney is going to charge the client for representing the client on the divorce or lawsuit. The attorney might request that the client replenish the retainer fee once the balance falls to a certain level to bring it back up to the original level. Once the divorce is complete, if there is any money left in the retainer, the attorney must refund this money back to the client.

Do I need a Temporary Order?
There are many reasons why a Temporary Order is necessary during a divorce. Temporary Orders can determine which spouse shall remain in the family home, mandate which spouse will pay the bills, which spouse will have primary custody of the children, which one will have possession/visitation rights to the children, which spouse will pay child support and the amount, payment of attorney's fees, spousal support, use and possession of property and other assets during the divorce proceedings. In order to get Temporary Orders, you must have a Temporary Orders hearing where a mini-trial is conducted. In most cases, before a Temporary Orders Hearing can occur, the parties must attend mediation to try and resolve these issues while the divorce is pending. The parties are asked to exchange a Financial Information Statement before or on the Temporary Orders Hearing.

What is a Temporary Restraining Order or TRO?
Upon request and without notice to the other spouse, the Court can issue a Temporary Restraining Order for the preservation of the property and protection of the parties as necessary. This order prevents the transfer or disposition of property and/or to prevent harassment or other specific actions by the parties, such as restraining the parties from threatening each other with unlawful action, and/or with harassing behavior. It keeps the status quo and the peace between the parties. A TRO if requested will almost always be granted and the courts usually prefer to make them mutual to both spouses. A TRO is temporary in nature and must be renewed after 10 days. However, if there is a violation of the TRO and or the Temporary Injunction, the courts can punish the spouse that violated the TRO or Injunction with Contempt.

What is a Temporary Injunction?
After notice and hearing, the restraints contained in a TRO can become a Temporary Injunction, both of which grant the same relief, to preserve property and protect the parties by keeping the peace. A temporary injunction is granted after notice and hearing (or agreement), and remains in effect until your divorce is granted. TRO and temporary injunctions are routinely granted upon request, and are made mutual as to both spouses.

What is a Protective Order?
A Protective Order is usually granted when there is family violence involved. A Protective Order requires a notice and hearing, has the power of a TRO, but also gets law enforcement involved if there is a violation of the order, and can be in effect for a much longer period of time.

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 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 you can be use in the enforcement proceeding. If the Court finds the ex-spouse in contempt for 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 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 in the discretion of the court to punish the violator as it sees fit.

What is Mediation?
Most Courts required that the parties attend mediation before a final hearing on a divorce. Mediation is a procedure where the spouses can negotiate to try and reach an agreement regarding their children, child support, property and debt of the marriage. The mediator is a third neutral person that officiates and directs the mediation. Mediation is confidential and a mediator cannot be made to testify unless an assault occurred in the presence of the mediator between the parties. But for the most part the parties are usually kept in separate rooms to avoid this from happening. The parties can reach a full agreement in mediation, a partial agreement or none at all. If there was a partial agreement or none at all, then the case will proceed to trial before the Judge or Jury. Mediation can also be requested by the Courts before Temporary Orders hearing is conducted.