Frequently Asked Questions

Divorce Lawyer's
Frequently Asked Questions

• May I Withhold Visitation because my Spouse will not pay child support?

• May I Stop Paying Child Support because my Spouse will not give me my visitation and access?

• What Are the Mechanics of an Action for Divorce?  

• Does it Matter Who Brings the Action?

• What Percentage of Cases are Settled Versus Tried to the Court?  

• What is an Uncontested Divorce?

• If the Case is Settled Out of Court, Must You Still Go Before a Judge?  

• How Long Does a Divorce Take?  

• Does a Spouse Have to Prove Fault on the Part of the Other Spouse to Obtain a Divorce?

• How is Property Divided in Texas?  

• Can I get Alimony?  

• Can I Do It Myself?

• Why do Lawyer's Require Retainers?

I. May I Withhold Visitation because my Spouse will not pay child support?

• No. Not ever. If you withhold visitation because a spouse will not pay his or her child support, you are taking the law into your own hands and may be held in contempt of court.

II. May I Stop Paying Child Support because my Spouse will not give me my visitation and access?

• No. Not ever. For the same reasons as in question one above, if you withhold child support because a spouse will not allow you to exercise your visitation you are taking the law into your own hands and may be held in contempt of court.

III. What Are the Mechanics of an Action for Divorce?

• An action for dissolution of marriage, or a divorce, is a lawsuit brought by one spouse against the other.  It starts by filing a Original Petition for Divorce. A petition is nothing more than a letter drafted and couched in legal terms written to the court telling the court what that person wants.  A petition is answered by either Original Answer or Answer and Counter-Petition.  Similar to the Original Petition, the Answer or Counter-Petition is a document which tells the Court what that person wants.

IV. Does it Matter Who Brings the Action?

• The person who brings the case first gets to talk first. Some lawyers swear that there is an advantage to being first. Others say it doesn’t really matter. There is no negative connotation attributable to the spouse who brings the action or to the person who responds to the action. However, as one lawyer said,  "first impression are lasting impressions."

• If family violence has been a part of your life, you need to take action. It is more credible for a victim of family violence to bring the action first.

V. What Percentage of Cases are Settled Versus Tried to the Court?

• Nearly all of them.  It is the policy of the State of Texas that parties are to try and resolve their conflicts without court intervention other than granting the divorce.  The Texas Family Code requires that each party sign an Alternative Dispute Resolution clause attached to their initial pleading.  

• The problem with settlement is that it usually takes significant legal action to bring the parties to a mutually agreeable resolution. It is like two boys in the school yard. After they both knock each other down, one says to the other “have you had enough.” The other replies, “if you have.”  It is unfortunate that it has to be this way, but it is very often true.

VI. What is an Uncontested Divorce?

• An uncontested divorce, also known as an agreed divorce, means that the parties will resolve all issues between them without significant court or lawyer participation.  The lawyer’s role in this type of case is limited to filing the petition and drafting a final decree of divorce. In the most basic of divorces (no property and no children), the following documents are required: Original Petition for Divorce, Alternative Dispute Statements, Waiver of Citation, Final Decree of Divorce, State Information Sheet. If you own a home, add Special Warranty Deed to the list. If you have IRAs or 401(k)s, add Qualified Domestic Relationship Order for each retirement account to the list. If you have children, add visitation provisions, insurance provisions, and child support provisions to the divorce decree. In addition, with children add Wage Withholding Order, and Medical Support Order to the document list.

VII. If the Case is Settled Out of Court, Must You Still Go Before a Judge?

• Yes. Only the judge can grant the divorce. Once all the documents are in order, one of the parties will sign off on the divorce decree and the other party will go before the judge to “prove up” the divorce. The lawyer will ask you a number of questions which mostly require only a yes or no answer.  The actual hearing takes only about 4 minutes. The time spent waiting for your turn, can be as long as 2 hours (usually about an hour, however).

VIII. How Long Does a Divorce Take?

• A minimum of 60 days. Texas law requires that the couple wait 60 days before the Court can grant a divorce. This is known as the cooling off period. It is the policy of the State of Texas that parties are to remain married. The 60 day period is about giving the parties an opportunity to reconcile.

IX. Does a Spouse Have to Prove Fault on the Part of the Other Spouse to Obtain a Divorce?

• No. Texas is a no-fault divorce state. We simply plead, “conflict of personalities that destroy the legitimate ends of the marital relationship.”  No spouse has to “give” the other spouse a divorce anymore. There is some discussion in the legislature about doing away with the no fault divorce.

X. How is Property Divided in Texas?

• All property is community property unless proven to be separate property by clear and convincing evidence. The division is that which is just and right in accordance with the courts ruling. Generally, you are looking at ½ each absent some circumstance that indicates otherwise. For example, a number of different factors such as unequal earning power, extent of separate property, and fault in the marital relationship can effect the division. There is a reported case where a 90 –10% split was deemed a just and right division. This case was upheld at the appellate level.

XI. Can I get Alimony?

• Texas disapproves of alimony. Yes, you can get alimony if you qualify. There are a number of factors involved and it is only awarded for a limited amount of time.

XII. What Does a Divorce Cost?

• The Texas Rules of Lawyer Discipline Rule 1.04 outlines the factors involved with attorney's fees. Fees are be based upon the time and labor expended, the complexities of the issues involved, the degree of difficulty of the matter, the results achieved, the County of venue for the divorce, and any extraordinary time or demands placed upon an attorney which would prevent an attorney from representing other clients. 

XIII. Can the Court Make My Spouse a Better Person?

• Not a chance. Frankly, the question seems silly at first glance. However, the question is often insinuated in a roundabout manner by our clients. They ask questions or take actions that indicate that they want the court to make their spouse a better person. The only thing a court can do is enforce its orders. The court is not going to change your spouse.

XIV. Can I Do It Myself?

Yes. Then again, that's like getting a medical book and performing surgery from the to do list. It can be done. By another analogy, its like the home handy man putting on the home addition from the Time Life Home Improvement Library.  Yes, it can be done. 

• Quite frankly, however, it is bad advice. In the first instance, divorce decrees and closing documents are complex documents. Unless you are familiar and have worked extensively with them, the chances of a nonprofessional drafting one successfully is low. We have had a number of clients who started out "doing their own divorce" in order to save money. After spending a lot of time in the library finding out how to do it and even more time typing in what they believed to be a correct divorce decree, they requested our assistance after having their divorce decree disapproved by the Court.  The Court said to them, "this divorce decree is insufficient, go back and try again . . . no, I can't give you advice."  

• Secondly, the "prove-up" of the divorce, requires that one of the spouse put on testimony that addresses specific evidentiary issues. If you fail to testify to a specific requirement, the divorce will be disapproved. We have seen Judges send Pro Se (by your self) litigants home because they failed to prove up their divorce properly. On another occasion, one Judge said, "go stand at the back of the room and see if you can learn to do it."

• Third, the Courts and Court staff hates "pro-se litigants." It is just a fact that pro-se (by yourself) litigants do not know the procedures and requirements of the law. They cause the Court process to slow down. The Courts are overbooked with tons of cases vying for their attention. Any slowdown of the process is disapproved of. In short, pro-se litigants do not know the ropes and the Courts can't teach it to them. 

Save yourself some time, frustration, and heart ache, hire a lawyer, any lawyer to assist you with this matter.

XV. Why Do Lawyers Require Retainer Fees?

Short answer, to make sure they get paid. Rhetorically, why do doctors have a nurse at the door? Why do mechanics require payment before giving you the keys to your car? Why do contractors, painters, plumbers, etc. place materialmen's liens on your property for the work that they do? To make sure that they get paid.

Lawyers practice law because they enjoy it, because they like the challenge, and to make their living. Like you, they have bills to pay. They have office overhead, dreams to fulfill, and little ones at home with their needs. Like you, they go to work to trade their time and expertise for compensation. The retainer insures that the attorney is compensated for his or her efforts.