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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court deterines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS:

Either spouse must be a resident of Texas for at least six months and resided in the county where the petition is filed for at least 90 days. The divorce petition is filed with the District Court of the county where either party lives.

TEXAS GROUNDS FOR DIVORCE: On the petition of either party to a marriage, the court may grant a divorce without regard to fault on the basis of irreconcilable differences. A divorce may also be granted on the following fault basis: (1) Cruelty, (2) Adultery, (3) Conviction of a felony, (4) Abandonment, (5) Confinement in a mental hospital, (6) Living apart without cohabitation for at least 3 years. [Based on Texas Statutes; Family Code, Chapter 6.001 through 6.007]

LEGAL SEPARATION: Texas does not have specific provisions for a legal separation, but allows for temporary orders to be filed at the time the divorce is filed. In cases where the parties have filed for a divorce or annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. This agreement may be revised or rejected before rendition of the divorce or annulment unless the agreement is binding under another rule of law. [Based on Texas Statutes; Family Code, Chapter 7.006]

SPECIAL DIVORCE PROCEDURES: On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration (the agreement must state whether the arbitration is binding or non-binding), mediation, or conducted under collaborative law procedures. On the written agreement of the parties or on the court's own motion, the court may refer a suit for dissolution of a marriage to mediation.

MEDIATION OR COUNSELING REQUIREMENTS: While a divorce suit is pending, the court may direct the parties to counseling. The counselor shall give only an opinion as to whether there exists a reasonable expectation of reconciliation of the parties and, if so, whether further counseling would be beneficial. If the court believes that there is a reasonable expectation of the parties' reconciliation, the court may by written order.

ALIMONY LAWS/SPOUSAL SUPPORT: The court may order maintenance for either spouse only if (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence and the offense occurred: (A) within two years before the date on which a suit for dissolution of the marriage is filed; or (B) while the suit is pending; or (2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, and the spouse seeking maintenance:

* is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;

* is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or

* clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs

Maintenance is based on:

1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;

2. the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;

3. the duration of the marriage;

4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

5. the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

7. the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;

9. the property brought to the marriage by either spouse;

10. the contribution of a spouse as homemaker;

11. marital misconduct of the spouse seeking maintenance; and

12. the efforts of the spouse seeking maintenance to pursue available employment counseling.

The court generally limits the duration of maintenance to three years or less, unless the person seeking support cannot obtain appropriate employment due to a physical or mental disability, duties as the custodian of an infant or young child, or other compelling impediments to gainful employment. A court may not order maintenance that requires an obligor to pay monthly more than the lesser of: (1) $2,500; or (2) 20 percent of the spouse's average monthly gross income. The obligation to pay future maintenance terminates on the death of either party or on the remarriage or cohabitation of the obligee with another person in a permanent place of abode on a continuing, conjugal basis (as determined by a court hearing). [Based on Texas Statutes; Family Code, Chapter 8.051 through 8.056]

SPOUSE'S NAME: In a decree of divorce or annulment, the court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the change of name. [Based on Texas Statutes; Family Code, Chapter 6.706]

TEXAS CUSTODY LAWS: The best interest of the child shall always be the primary consideration in determining custody, without regard to the sex of the parent or child. Sole or joint custody may be awarded, but presumption shall be for joint managing conservators. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. The court shall use the following factors in determining custody:

1. whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;

2. the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;

3. whether each parent can encourage and accept a positive relationship between the child and the other parent;

4. whether both parents participated in child rearing before the filing of the suit;

5. the geographical proximity of the parents' residences;

6. if the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and

7. any other relevant factor. [Based on Texas Statutes; Family Code, Chapter 153]

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CHILD SUPPORT: The court may order either or both parents to support a child in the manner specified by the order:

* until the child is 18 years of age or until graduation from high school, whichever occurs later;

* until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;

* until the death of the child; or

* if the child is disabled as defined in this chapter, for an indefinite period.

The court may order that child support be paid by periodic payments, a lump sum payment, and annuity purchase, the setting aside of property to be administered for the support of the child as specified in the order, or an combination of these methods. The court shall also order medical support for the child, as well as order income withholding to secure the payment of child support.

There are official Texas child support guidelines and these are presumed to be reasonable and in the best interests of the child. [Based on Texas Statutes; Family Code, Chapter 154]

PREMARITAL AGREEMENTS: A agreement must be in writing and signed by both parties and is enforceable without consideration. The parties to a premarital agreement may contract with respect to: (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (4) the modification or elimination of spousal support; (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement; (6) the ownership rights in and disposition of the death benefit from a life insurance policy; (7) the choice of law governing the construction of the agreement; and (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

The right of a child to support may not be adversely affected by a premarital agreement. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.

HOW TO ENFORCE CHILD SUPPORT IN THE STATE OF TEXAS – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF TEXAS:
http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm