Family Law FAQs
Frequently Asked Questions
Mr. Herr shares his insights on frequently asked questions.
Disclaimer: Do not rely on these answers as legal advice for your
specific case because each case must be judged individually.
These advisements are not to be construed as creating the
attorney-client relationship.
How long is the waiting period between when a divorce is filed and
when it is final?
Most jurisdictions have a waiting period. This serves either as a cooling
off period or as a time to adjust your affairs to single life. In Texas, you
must wait 60 days from the time you file until your divorce is final, even
if the divorce is uncontested.
Because Texas is a community property state, may I expect a
"50-50" division of the marital estate ?
It depends. Property in a divorce is divided in a "just and right" division
and the judge may examine evidence such as who's at fault for the
divorce and other factors in making a disproportionate distribution.
May I request a judge or jury trial ?
Either party may request a judge or jury trial. Judges primarily decide
questions of law and the jury would decide questions of fact.
What are my chances of gaining custody of my children?
It depends on the facts of the case. Under Texas law, there is a
presumption of a joint managing conservatorship ("JMC"). If both
parents were involved with the children during the marriage, a joint
managing conservatorship will be the starting point.
Does a Joint Managing Conservatorship mean each parent having
equal time with the children?
Not always. Joint custody means the sharing of parental rights and
duties and not necessarily equal time.
Who will be responsible to pay child support?
The spouse who does not have primary custody of the children carries
the responsibility to pay child support.
If my spouse wants a divorce and I do not want the divorce, may I
stop the divorce?
Generally speaking, no. However, if both parties reconcile or the case
is dismissed for want of prosecution ("DWOP"), then the proceedings
would cease. The caveat to DWOP cases is that they may be refiled.
How is alimony structured in Texas?
The Texas Legislature passed the "alimony" statute in 1995. It is
defined as spousal maintenance under the Family Code & is limited to
a 3 years after the Final Decree of Divorce, unless a spouse is unable to
work because of a physical or mental disability. There are certain
statutory prerequisites that must be satisfied before a Judge may grant
spousal maintenance.
Mr. Herr shares his insights on frequently asked questions.
Disclaimer: Do not rely on these answers as legal advice for your
specific case because each case must be judged individually.
These advisements are not to be construed as creating the
attorney-client relationship.
How long is the waiting period between when a divorce is filed and
when it is final?
Most jurisdictions have a waiting period. This serves either as a cooling
off period or as a time to adjust your affairs to single life. In Texas, you
must wait 60 days from the time you file until your divorce is final, even
if the divorce is uncontested.
Because Texas is a community property state, may I expect a
"50-50" division of the marital estate ?
It depends. Property in a divorce is divided in a "just and right" division
and the judge may examine evidence such as who's at fault for the
divorce and other factors in making a disproportionate distribution.
May I request a judge or jury trial ?
Either party may request a judge or jury trial. Judges primarily decide
questions of law and the jury would decide questions of fact.
What are my chances of gaining custody of my children?
It depends on the facts of the case. Under Texas law, there is a
presumption of a joint managing conservatorship ("JMC"). If both
parents were involved with the children during the marriage, a joint
managing conservatorship will be the starting point.
Does a Joint Managing Conservatorship mean each parent having
equal time with the children?
Not always. Joint custody means the sharing of parental rights and
duties and not necessarily equal time.
Who will be responsible to pay child support?
The spouse who does not have primary custody of the children carries
the responsibility to pay child support.
If my spouse wants a divorce and I do not want the divorce, may I
stop the divorce?
Generally speaking, no. However, if both parties reconcile or the case
is dismissed for want of prosecution ("DWOP"), then the proceedings
would cease. The caveat to DWOP cases is that they may be refiled.
How is alimony structured in Texas?
The Texas Legislature passed the "alimony" statute in 1995. It is
defined as spousal maintenance under the Family Code & is limited to
a 3 years after the Final Decree of Divorce, unless a spouse is unable to
work because of a physical or mental disability. There are certain
statutory prerequisites that must be satisfied before a Judge may grant
spousal maintenance.
Will a prenuptial agreement prevent a contested
divorce matter?
Prenuptial agreements primarily address the
characterization of property, i.e. separate and
community property. There agreements may also
issues of infidelity and provide for a monetary
compensation, if violated.
What is the first course of action in the
dissolution process?
Unless there is a reasonable expectation of
reconciliation, your lawyer will file the divorce
petition stating the grounds for divorce. Although
Texas is a no-fault divorce state, the Court may
consider factors of cruelty, abandonment, adultery
into the division of the marital property estate.
Will mediation be required ?
Most Texas courts will require mediation.
However, it depends upon the jurisdiction, the
local rules, and the judge.
How may I establish a winning case?
The most critical piece of evidence is to secure
three to five years of financial records, including
income tax returns, and any other relevant
evidence in your case.
May one attorney represent both the husband and
the wife in a divorce?
No. Ethically, an attorney may draft the
documents for both parties. However, that attorney
may not legally advise more than one party
because there is an inherent conflict of interest.
If my case is scheduled to go to court on a certain
date, am I guaranteed that it will happen?
No. Since many cases (i.e. 8 or 10) cases may be
set on the docket for the same day, another case
may be heard before your case & it might be reset
for future date.
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