Resources

How long will it take to finalize my divorce?
A minimum of 60 days. Texas law requires that the couple wait a minimum of 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, while other courts are content to let divorce cases languish for very long periods of time.
What is the cost of divorce?
The cost depends on 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 are not) throughout the process.
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 because they need 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.
Do grandparents have rights in Texas?

SUBCHAPTER H.  RIGHTS OF GRANDPARENT, AUNT, OR UNCLE

Sec. 153.431.  APPOINTMENT OF GRANDPARENT, AUNT, OR UNCLE AS MANAGING CONSERVATOR.  If both of the parents of a child are deceased, the court may consider appointment of a parent, sister, or brother of a deceased parent as a managing conservator of the child, but that consideration does not alter or diminish the discretionary power of the court.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 484 (H.B. 261), Sec. 2, eff. September 1, 2005.

Sec. 153.432.  SUIT FOR POSSESSION OR ACCESS BY GRANDPARENT.  (a)  A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
(1)  an original suit; or
(2)  a suit for modification as provided by Chapter 156.
(b)  A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
(c)  In a suit described by Subsection (a), the person filing the suit must execute and attach an affidavit on knowledge or belief that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the petitioner would significantly impair the child’s physical health or emotional well-being.  The court shall deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under Section 153.433.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 484 (H.B. 261), Sec. 3, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 11, eff. September 1, 2009.

Sec. 153.433.  POSSESSION OF OR ACCESS TO GRANDCHILD.  (a)  The court may order reasonable possession of or access to a grandchild by a grandparent if:
(1)  at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
(2)  the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
(3)  the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
(A)  has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B)  has been found by a court to be incompetent;
(C)  is dead; or
(D)  does not have actual or court-ordered possession of or access to the child.
(b)  An order granting possession of or access to a child by a grandparent that is rendered over a parent’s objections must state, with specificity that:
(1)  at the time the relief was requested, at least one biological or adoptive parent of the child had not had that parent’s parental rights terminated;
(2)  the grandparent requesting possession of or access to the child has overcome the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that the denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
(3)  the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
(A)  has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B)  has been found by a court to be incompetent;
(C)  is dead; or
(D)  does not have actual or court-ordered possession of or access to the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1997, 75th Leg., ch. 1397, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch. 484 (H.B. 261), Sec. 4, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 12, eff. September 1, 2009.

Sec. 153.434.  LIMITATION ON RIGHT TO REQUEST POSSESSION OR ACCESS.  A biological or adoptive grandparent may not request possession of or access to a grandchild if:
(1)  each of the biological parents of the grandchild has:
(A)  died;
(B)  had the person’s parental rights terminated; or
(C)  executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates the Department of Family and Protective Services, a licensed child-placing agency, or a person other than the child’s stepparent as the managing conservator of the child; and
(2)  the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child’s stepparent.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1997, 75th Leg., ch. 561, Sec. 4, eff. Sept. 1, 1997;  Acts 1999, 76th Leg., ch. 1390, Sec. 13, eff. Sept. 1, 1999.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.049, eff. April 2, 2015.

 

Sec. 102.004.  STANDING FOR GRANDPARENT OR OTHER PERSON.  (a)  In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
(1)  the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or
(2)  both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
(b)  An original suit requesting possessory conservatorship may not be filed by a grandparent or other person.  However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.
(c)  Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1999, 76th Leg., ch. 1048, Sec. 2, eff. June 18, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 3, eff. June 18, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 2, eff. September 1, 2007.

Beginning with 2009 data, new systems were implemented for recording marriages and divorces in Texas.

In 2014, there were 177,230 marriages reported to the Texas Vital Statistics Unit (VSU), a decrease of 1,943 compared to 2013 in which there were 179,173 marriages reported. The crude marriage rate of 6.8 marriages per 1,000 residents in 2013 decreased in 2014 to 6.6 marriages per 1,000 residents.

The number of divorces reported to VSU decreased to 71,988 in 2014 from 76,423 in the previous year. The crude divorce rate of 2.7 divorces per 1,000 residents decreased in 2014 compared to the previous year of 2013 at 2.9.

My ex-spouse is not paying enough child support for how much he or she makes. Can I get the amount of child support increased?
To modify the amount of child support (either  an increase or decrease in the amount ordered), one of two things must be proven in court: either (a) you 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, so the question of whether child support can be modified becomes primarily a question of math.
At what age can a child decide with whom he or she wants to live?

The court, not the child, is the ultimate judge of where the child’s primary residence will be; however,

Sec. 153.009.  INTERVIEW OF CHILD IN CHAMBERS.  (a)  In a nonjury trial or at a hearing, on the application of a party, the  amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.  The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
(b)  In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession,  access, or any other issue in the suit affecting the parent-child relationship.
(c)  Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d)  In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.
(e)  In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.
(f)  On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older.  A record of the interview shall be part of the record in the case.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1997, 75th Leg., ch. 781, Sec. 1, eff. Sept. 1, 1997;  Acts 2001, 77th Leg., ch. 1289, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 9, eff. June 18, 2005.

What is common law marriage?

There are two ways people can form a common law marriage in Texas:

  1. they sign a Declaration of Marriage under section 2.402 of the Family Code (this is fairly rare); or
  2. the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and represented to others that they were married.

If you are married pursuant to common law and 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.

Ending a Common-Law Marriage

Even though some states recognize common-law marriage, there is no common-law divorce those states. If a couple married at common-law wishes to terminate their marriage, they must do more than stop living as husband and wife to consider the marriage over. The marriage may not end the same way it was created, instead, there must be a formal procedure and legal process. In most states, the termination of a legal “ceremonial” marriage and a common-law marriage are the same. Parties must file a complaint with the court to terminate their marriage; forms may be for divorce, dissolution of marriage or annulment depending on the state law and the situation. The specific requirements vary by jurisdiction and are contained in state statute. The divorce complaint may also include provisions for distribution of property or assets, spousal maintenance or alimony and custody. It is important to speak to an attorney in your jurisdiction to learn more about the laws regarding common-law marriage and termination of common-law marriage in your state.

What is Collaborative Family Law?

Collaborative law was created as an alternative to traditional litigation. Litigation can be expensive, time consuming and confrontational for all parties involved. Family law issues are often particularly emotional and since children are often involved, the traditional court process has been viewed as negative and possibly harmful. Family law issues range from divorce, spousal support and asset division to child issues such as custody, support and visitation. When trying to reach an agreement regarding family law issues, litigation may often be an emotionally charged, negative experience for the parties involved. As another option to litigation, collaborative law is an out of court process that is intended to produce an environment of consideration for others and communication that helps parties cooperate with each other and reach a settlement agreement.

The collaborative law model has been increasing in popularity since it was introduced in Minneapolis, Minnesota, in the early 1990s. It has been used in the United States, Canada, Australia, New Zealand, England, Ireland, Scotland, China, some African countries and other European countries. Attorneys in the US and around the world have been forming professional groups in support of the collaborative law method as its recognition and usage has grown. One of these groups is the International Academy of Collaborative Professionals (IACP). Goals of groups, such as the IACP, are to provide individuals information about what collaborative law is, if it may be a good choice for them and how to locate an attorney who is trained in collaborative law.

Attorneys that practice in this area are trained in the collaborative law method. There is currently no formal training program. However, in most states training includes workshops and instruction with other collaborative law professionals and involves skills similar to those of a trained mediator, such as interest-based negotiation. Due to the success and popularity of this method, some states have statutes regarding collaborative law and many other legislatures, including the federal government, are currently developing laws that will include collaborative law as a form of dispute resolution (ADR).

Collaborative law is intended to be conducted by a team of specialists. The team approach may help the parties reach an agreement by giving them guidance in specific areas. Specialists may focus on children’s issues, mental health or financial and do not have to be attorneys or part of the legal profession. Not all types of trained specialists have to be utilized in every collaborative law negotiation; however, a financial specialist is used by most parties. The purpose of specialists is to help the parties reach a settlement they can both agree to and assist with any difficulties the parties may have regarding parenting plans or visitation, valuation of property or other assets, budgeting, alimony, child support, communication skills or assistance with mental health issues such as depression or anxiety.

When parties agree to using collaborative law for their family law issues, they must agree to enter the negotiation process, fully participate in the negotiation and treat the other party with civility and respect. If the parties cannot agree to these terms, the collaborative model may not be the right choice for them and the process cannot continue. If the parties agree to the terms, each spouse will have their own attorney to represent his or her interests in the negotiations. The parties will have a series of meeting with each other, each party’s attorney and team specialists to reach an agreement. If an agreement cannot be reached, the collaborative method is discontinued and the parties must engage new attorneys to enter the litigation process to resolve their dispute.

What Rights do Children Have?
Children have most, but not all, of the same rights as adults. Rights that are often at issue are the rights of minors in delinquency proceedings, due process rights in schools and privacy rights. A minor child is more vulnerable than an adult, and it is important that children have rights to protect them. In order to have protections and safeguards, it is necessary to limit some rights that adults may have in the same or similar situations. Some rights that may be limited are privacy rights and the rights of a minor child in school. Children must also be protected in the court system, such as delinquency proceedings. It is often difficult or impossible for minors to advocate for their own rights in a legal context. For this reason, advocates may be appointed by the courts to ensure that children’s rights are protected and their best interests are being looked out for.
What is Pet Custody?

The end of a relationship is a difficult time for most individuals. When going through a divorce or separating, a couple must not only deal with the emotional aspects, but the division of marital possessions. Marital possessions may include finances and property, but also include any family companion animals. Custody over the family pet has become an important issue for many divorcing couples in recent years. As lifestyles have been changing, animals have become significant family members. For some individuals, the loss of the family pet may be as emotionally traumatic as losing a human loved one. Since animals have become such a central focus of many families’, custody of such a family member is a main concern of many couples.

Legally, a companion animal is treated as property. The court must view pets as part of the marital property; therefore, the options available to the court are limited. Even though the family dog may be like a child to the couple, the court cannot reflect this feeling when dividing the couple’s property. There is no legal authority to determine custody of a pet with a “best interest” standard, as a judge would when determining custody of a human child. Therefore, the options may be to give one individual custody of the pet, determine the worth of the animal and give one party the pet’s monetary value or sell the family pet and divide the proceeds between each party. There is no option of joint custody or visitation over property. If a couple would like to have dual ownership, or visitation, of their family pet, they must create an arrangement between themselves. The court will not have legal authority to enforce such an agreement. If the couple comes to an understanding regarding visitation or joint pet custody, the court will also not be able to include their agreement in the marital dissolution or the property settlement agreement; nor will the court have the power to enforce the couple’s’ pet custody arrangement if either party does not abide by the terms.

Naturally, the current legal options are not acceptable to most loving pet owners. In response to the emotional aspect of determining pet custody, some courts have been using an alternative viewpoint. Although there are no specific laws concerning pet custody, there are anti cruelty laws that apply to companion animals. Some courts have used these laws as authority to consider the animal’s best interests when deciding who should get custody of the family pet. Few courts have used this standard; however, it may be more of a growing trend in the future. As pets have more of an elevated status in the family unit, people may demand that their animals be treated as more than property in the eyes of the law. A pet is more important to most people then who get’s the wedding china or the lawn mower. The value of an animal is also more difficult to determine. The market price of the family pet may not take into consideration the emotional worth the pet brings to its owners. Thus, the value of a pet as property may not be truly accurate for the pet owners.

  Gill, Revack, Samaan &  Muller, LLP

6575 West Loop South, Suite 600,
Bellaire (Houston), Texas 77401

office@grslegal.com

(713) 271-8282 or (800) 952-5559

(713) 271-2112