Frequently Asked Questions about Divorce and Family Law

(Please note: The following FAQs apply only in the State of Texas. Please see our disclaimer on the "Contact Jack Riley" page.)

1. What does "Board Certified" mean?
In Texas, if an attorney is Board Certified in Family Law by the Texas Board of Legal Specialization, it means that attorney has: a) sufficient experience in family law to qualify to be submitted for consideration as a specialist by the Texas Board of Legal Specialization, b) been successfully peer-reviewed by other attorneys and judges who practice in that attorney's area, and c) passed a test designed to determine whether the attorney has achieved a level of knowledge and expertise in family law sufficient to qualify him as a specialist.

2. Does it matter who files the divorce first?
Yes. There are very slight procedural advantages to filing first: for one thing, the person who brings the case first gets to talk first, and sometimes first impressions are lasting impressions.

3. Do I have to prove fault of the other spouse to get a divorce?
No. You do not have to show fault to get a divorce in Texas, but if there is fault -- such as adultery, for example, it can sometimes be a factor in court -- depending on the circumstances.

4. How long will it take to finalize my divorce?
A minimum of 60 days. Texas law requires that the couple wait 60 days after the date the divorce petition is filed to finalize the divorce. How long any individual case takes to resolve depends on many factors. Some courts require a divorce case to go to trial fairly quickly. Other courts are slower. Perhaps the typical divorce lasts six months, though some cases are resolved quicker and others take longer.

5. What does a divorce cost?
The cost depends on several factors: whether you and your spouse can reach an agreement regarding the property division and children, how long the case has to be litigated before that agreement is reached, whether temporary orders are necessary, whether a trial is necessary, whether discovery is conducted, and how reasonable your spouse and your spouse's attorney are (or aren't) throughout the process. Of course, your lawyer's hourly rate may affect the cost, but failing to have the right attorney for the case will ultimately prove much more expensive.

6. My ex-spouse is paying too little child support for how much he or she makes, so can I get the amount of child support increased?
To modify the amount of child support (either to increase or decrease the amount ordered), one of two things must be proven in court: either, a) you can show that the circumstances of the child or a person affected by the order have materially and substantially changed since the date the order was signed, or b) it has been three years since the order was signed and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. Most cases will fall under the three-year category, and so whether the child support can be modified becomes primarily a question of math.

7. At what age can a child decide with whom they want to live?
The Court, not the child, is the ultimate judge of where the child's primary residence will be, however the Judge (in a non-jury trial) will, upon request, interview a child 12 years of age or older and may interview a child under 12 years of age to determine the child's wishes as to who the child lives with primarily. A Motion to Modify must be filed with the Court before the Court can modify its prior order. Although a mature child's wishes are sometimes very persuasive to the court, the child's preference is not binding on the court as the court will attempt to make a decision which is in the child's best interest (which is not always what the child wants).

8. What is common law marriage?
There are two ways people can form a common law marriage:
a) They sign a Declaration of Marriage under section 2.402 of the Family Code (this is pretty rare), or
b) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
If you are common law married and you no longer wish to be married to your common law spouse you will need a divorce. If a divorce from a common law marriage is not brought within two years after the parties separate, then there is a rebuttable presumption that there was no common law marriage. Note that the presumption is rebuttable which effectively creates an informal but not an absolute statute of limitations for common law marriages.

9. Why do lawyers require up-front retainer fees?
Short answer, to make sure they get paid. Lawyers practice law because they like the challenge and to make a living. Like you, they have bills to pay, and they go to work to trade their time and expertise for compensation. They also have employees and office overhead. The retainer ensures that the attorney is compensated for his or her efforts.

10. How is property divided in Texas?
The starting point is that the Court presumes that all the property of the marriage is community property, and if you have separate property you have to prove it by tracing it with "clear and convincing evidence." Separate property is generally property a spouse owned prior to marriage, inherited either before or during the marriage, or received as a gift. The Court divides the property in a "just and right manner." What does this mean? In some cases, it means a 50/50 split. In other cases, factors such as unequal earning power and fault in the marital relationship can affect the division of property. 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.

11. Can I get alimony?
Although getting temporary spousal support (while the divorce is pending) is common, it is more difficult to get post-divorce alimony or "spousal maintenance." However, you can get post-divorce spousal maintenance if you qualify. There are several factors involved which would need to be discussed with you. Also, alimony is sometimes a negotiated matter.

12. Do grandparents have rights in Texas?
Although the state of the law in this area seems to always be in flux, generally, under the Texas Family Code, a grandparent can get access (limited visitation) with a grandchild in certain limited circumstances. Grandparent custody of a child is also allowed under the Texas Family Code if the parents consent or under certain unusual circumstances. If a grandparent has been raising a grandchild, the odds of the grandparent getting custody of that child increase substantially.

13. What are the mechanics of an action for Divorce?
Please click on the "Divorce Process" button at left for the answer to this question.