Frequently Asked Questions
Houston Divorce FAQ
If you have made the difficult decision to separate from your spouse or permanently end your marriage, you may be wondering what steps to take next. Jumping into the divorce process can seem overwhelming at first, as several important issues must be resolved, but with the qualified guidance of a legal professional, you can move past the dissolution of your marriage in a timely manner. As such, the Houston divorce lawyer at the Law Office of Eric L. Fredrickson has compiled the following answers to some of the most frequently asked questions regarding divorce. For further information, however, we prompt you to contact our firm and discuss the specific nature of your case with an attorney first-hand.
How is child custody determined between parents?
Agreeing upon a viable child custody arrangement is often the most difficult aspect of a divorce. For this reason, the matter is often decided upon with the intervention of a judge. Although many people assume that the court system favors the mother of a child over the father, the judge that is overseeing a case is required to make a decision with the child's best interests in mind. As such, they can award one parent sole custody and the other visitation rights or both parents
joint custody Depending on the unique circumstances of each case—taking into account any history of domestic violence and/or substance abuse and the testimony of the child—a custody arrangement will be determined accordingly.
How is a visitation schedule established?
When one parent is awarded sole custody in a divorce, the other may then be allotted visitation rights. Known as a "possession order," a judge has the authority to establish this arrangement for parents. The judge views the child's interests as the most important aspect of this schedule. There is a standard possession schedule that a judge will impose, but it is possible for the parents to settle out of court and work with their attorneys to negotiate a schedule that is the best outcome for all concerned. This may also include figuring out a practical child support arrangement, as the parent that has been awarded visitation rights will likely be required to pay the custodial parent.
How is property divided in a divorce?
Although Texas is a community property state, the rules about marital property differ than those of other community property states. The judge has leeway to determine what he considers "just and right" under certain circumstances. Division of property is not always 50-50, as many factors are considered, especially when children are involved. Typically, however, all shared assets that were acquired within the scope of a marriage can be subject to separation—regardless of whose name is on the title of a shared house or any cars, for example. If two former spouses can come to an amicable agreement on how they would like their property divided, they can avoid leaving this decision up to the court.
Where do I get the forms that I need to file for divorce?
The best answer is, there aren't any. While many companies profess to sell pre-printed or user interactive divorce forms that are either "valid in all 50 states" or "valid in all Texas courts," often, if not most of the time, these forms will not be accepted by a Texas judge. If your forms are rejected by the court, you may have to start all over again, costing you additional time and money. What's worse, your forms might pass the judge's scrutiny but may contain errors or omissions that will cost you dearly in the future. At the present time there is even talk among the Harris County, Texas family judges about formally prohibiting the use of divorce "kits" and "forms" by people trying to get by with a do-it-yourself divorce. Your best choice is to find a qualified Houston Area divorce attorney who will work within your budget and provide you with the professional legal representation you need.
What does it cost to file for divorce?
The cost to file for divorce will vary county by county. Each District Clerk charges a different filing fee. Some counties charge more for a divorce involving children than for a divorce with no children involved. Typically, filing fees range from $200 to less than $300. If your spouse needs to be served with the divorce papers, there will be an additional fee for issuance of citation and a fee to the process server. These fees are not attorney's fees. Any work performed by a lawyer on your case will cost you an additional amount in attorney's fees, depending on the lawyer's fee or hourly rate. Typically family lawyers in the Houston Area charge hourly rates between $200 -$300. Some will charge a flat fee.
Can my spouse leave and take the kids?
Either one of you has the right to leave and take the kids with you until a court orders otherwise. But a parent who leaves the house for a permanent or indefinite period runs a higher risk of losing the house in the divorce than one who stays. Likewise, a parent who leaves the children with the other parent for any extended time runs a higher risk of losing "primary custody" in a divorce. Also, it does happen that a parent who leaves with the children can be later ordered by a court to return the children to the residence of the other parent. However, if you are in a situation involving family violence, your personal safety must be the primary concern. If you are worried about custody or conservatorship of your children, contact a qualified Houston divorce attorney today for advice.
Can my spouse force me to move out of the house?
In order to force you to move out of the house, your spouse would have to obtain what lawyers call a "kick out order" from the court. These orders are difficult to get on an "ex parte" basis unless there is a situation involving recent family violence or an immediate threat of danger to the spouse or the children. If your spouse wants you to move out - or if you want your spouse to move out - the spouse who wants to stay in the residence will need to file for divorce, serve the other spouse with notice of a hearing and put on evidence at that hearing as to why he or she should have temporary possession of the residence until the divorce is final. At final trial the court will decide which spouse will be awarded the residence or order that it be sold and the proceeds divided. A qualified family lawyer can give you the advice you need about these issues.
What can I do if I don't want a divorce but my spouse does?
The Texas Family Code states that a divorce may be granted if the "marriage has become insupportable because of conflict or discord that destroys the legitimate ends of the marriage relationship" and that there is no reasonable chance of reconciliation. This means that if either spouse can convince a judge that the marriage has become "insupportable" and that there is no chance for reconciliation, a divorce must be granted. In some cases, you may be able to force your spouse to attend one or more sessions of marriage counseling and require that the counselor advise the court whether, in the opinion of the counselor, there is a chance for the parties to reconcile their differences. An experienced Houston divorce lawyer can give you the advice you need about your rights in contesting the divorce.
What's the difference between a "no fault" divorce and a divorce based on fault grounds?
In Texas, a "no-fault" divorce is one in which one or both parties allege in their divorce pleading that the "marriage has become insupportable because of conflict or discord that destroys the legitimate ends of the marriage relationship." Neither spouse is blamed for causing the break-up of the marriage, i.e. neither party is "at fault." But even if a spouse has been at fault in the break-up of the marriage, you don't need to state this fault in the divorce petition. If a party does allege fault, for example adultery, abandonment, conviction of a felony, or cruel treatment, that party may use this as a basis for asking for a "disproportionate share" of the parties' marital estate upon divorce. My firm can answer your questions about whether or not to plead fault grounds for divorce.
Looking for Additional Information?
If you still have questions regarding the divorce process or about the rights that you possess during the legal dissolution of your marriage, we urge you to discuss the facts of your case with a Houston divorce attorney from our firm. In doing so, we can inform you of what to expect and advise you on the most practical ways in which to proceed with the various facets of your divorce. Similarly, if you are struggling to manage a complicated family law matter like adoption, it is important to enlist the help of a legal professional early on. Making a single misstep when navigating through such complex legal territory could prove to be detrimental to you in the end, so do not hesitate to retain the help that you will need. For more information about how the Law Office of Eric L. Fredrickson can assist you, call today.