Frequently Asked Questions
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 manner that is "just
and right" 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 upon the facts of the case. Under Texas law, there is a
presumption of joint custody. If both parents were involved with the
children during the marriage, joint custody will be the starting point.
Does joint custody 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 carry
this responsibility to pay child support to the primary custodial parent.
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), the proceedings would
cease. The DWOP cases may be refiled, though.
How often is alimony awarded in Texas?
The Texas Legislature passed the "alimony" statute in 1995. Unless you
have no significant assets or means of support, alimony will not be
granted.
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 manner that is "just
and right" 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 upon the facts of the case. Under Texas law, there is a
presumption of joint custody. If both parents were involved with the
children during the marriage, joint custody will be the starting point.
Does joint custody 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 carry
this responsibility to pay child support to the primary custodial parent.
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), the proceedings would
cease. The DWOP cases may be refiled, though.
How often is alimony awarded in Texas?
The Texas Legislature passed the "alimony" statute in 1995. Unless you
have no significant assets or means of support, alimony will not be
granted.
Will a prenuptial agreement prevent a contested
divorce matter?
Prenuptial agreements primarily address the
characterization of property. However, some
agreements have gone so far as to address issues
of infidelity and provide for a monetary
compensation (i.e. $25,000) if violated.
What is the first course of action in the
dissolution process?
Unless you have decided that reconciliation is
possible, 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 such as adultery and cruelty into
consideration of the division of the marital
property estate.
Will mediation be required ?
Most Texas courts 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 eight or ten cases may be set on the
docket for the same day, another case may be
heard and your case may be reset for future date.
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