Attorney at Law
Frequently Asked Questions—Divorce
The following questions, definitions, and explanations are being offered as an aid for those individuals who may be considering a divorce and wish to understand their rights under our laws. This information is not intended to take the place of an attorney or to provide all of the information which anyone needs when making an important decision to end his or her marriage.
PLEASE REMEMBER that everyone’s family situation is different. Judges are different. Attorneys are different. Clients are different. It is therefore not recommended that any client compare his or her situation to his neighbor, or his sister, or best friend. Only an attorney familiar with all of the facts in a client’s case is in a position to advise that client and to offer him or her recommendations on the best course of action to take in his or her particular case.
1) My spouse says that I have to leave our home because I am the one who wants the divorce, but the house was purchased during our marriage and is in both of our names; is my spouse correct?
ANSWER: No. Wishing to obtain a divorce is never a reason why one spouse is required to leave a home. If it was purchased by you and your spouse from funds earned by one or both of you during your marriage, then it is “community property”, and each of you has an equal right to reside there, regardless of who requests a divorce. Once a divorce case is begun, a judge may order one spouse to leave the community property residence.
2) Do I have any rights to any of the money in the bank if it is all in my spouse’s name?
ANSWER: Yes. Just because one spouse’s name is on a bank account does not mean that the spouse owns that money 100%. Whose name is on an account has to do with who controls the money, not necessarily who owns it. If the money was earned by either of the spouses during the marriage, then the money is “community property” and each spouse has a 50% interest in it.
3) I do not have any of the records which show how much money or stock my spouse and I own. How can I prove in a divorce what I should be entitled to receive, or what my spouse has earned, if I do not have any of these records?
ANSWER: Our divorce procedure provides steps which can be taken to require your spouse to produce the financial records which are needed in a divorce. Those records can be ordered by a judge to be provided either from your spouse or directly from the particular financial institutions or employers involved.
4) I know all states have different residency requirements before a divorce can be obtained. What are those requirements in Texas?
ANSWER: Texas law requires that at least one party must have been a resident in the state of Texas for at least SIX MONTHS, and a resident in the county in which the divorce is filed for a period of NINETY (90) DAYS before the filing of the divorce. Then, the divorce case must be on file with our Court for a minimum period of SIXTY (60) DAYS before the couple is eligible to receive a final divorce.
5) How do I know what property I am likely to receive if I do decide to divorce my spouse?
ANSWER: No one can promise you what specific property you will receive in a divorce. Under Texas law, our judges begin each case with the presumption that each spouse is entitled to 50% of the community property accumulated during the marriage. Then, the Judge receives evidence during the trial of different factors he or she will take into consideration to determine a fair division of a couple’s property and debts. An experienced attorney who obtains personal, employment, and financial background information from you can help evaluate the advantages and disadvantages of your particular case which the Court is likely to take into consideration in the division of your property and debts in a divorce.
6) Do I have to force my child to go visit my ex-spouse if he does not want to?
ANSWER: If you are physically able to control your child, and you have a Court order which provides your ex-spouse with visitation rights with his child, then you should do everything possible to require your child to visit with his father. If you do not make your child available to your ex-spouse for visitation, the Court may find that you are in violation, or contempt, of its prior Court order; you could then face a fine or other penalty.
7) If my spouse has already agreed not to fight with me over the custody of our children, does that mean that I can start receiving child support right away?
ANSWER: Not necessarily. If your spouse agrees to begin making child support payments to you, agrees upon the amount that is to be paid, and, agrees to send the support directly to you, then you could receive child support right away. More often, however, it is the case that spouses (or their attorneys) will require that written agreements between the spouses be prepared first, to make sure that both parties are bound by their particular agreement.
8) Is it true that my wife and I will have equal time with our children if we are named “joint managing conservators” of our children?
ANSWER: No. “Joint managing conservatorship” has to do with the sharing of the legal rights and responsibilities for the children. It does not refer to an equal amount of time to be spent by each parent with the children. Our Courts typically order a “Standard Possession Order” for joint managing conservators in a divorce; that possession order corresponds with weekends, summers, and other holidays when the children are not in school and assigns a portion of those times to each parent.
9) Do I have to keep my husband’s last name after I obtain a divorce?
ANSWER: No. If you satisfy the Court that you are not requesting a name change in order to avoid creditors, or for any other unlawful purpose, then the Court will typically grant your request to change your name in a divorce.
10) If my spouse does not agree to give me a divorce, can I still proceed with my request for a divorce?
ANSWER: Yes. Only one spouse is required to request a divorce. The other spouse must be officially served with the divorce papers, or must make a legal “appearance” in the case in some way if he/she wishes to participate; however, the agreement of the second spouse is not required.
11) I have been driving our children to their activities in a large vehicle that my husband owned before we were married, and my husband is now telling me that I will not be able to keep that vehicle in our divorce; is that true?
ANSWER: Yes. No Texas Court would be able to award that vehicle to you, absent your husband’s consent, since it is your husband’s “separate property”. If an agreement could be made with your husband to exchange various items of community and separate property, including the vehicle, such an agreement would likely be approved by the Court; under those circumstances, you would then be able to keep the vehicle.
12) I got married eight years ago, right after I graduated from high school. Will I be eligible to receive alimony after my divorce?
ANSWER: No. The only alimony, or “separate maintenance” payments provided to spouses under Texas law following a divorce requires that the marriage be for a minimum of ten years.
13) If my husband is the one who wants a divorce, can’t he be required to pay my attorney’s fees so that I can hire a lawyer?
ANSWER: There are circumstances in which a Judge will order that a spouse pay attorney’s fees on behalf of the other spouse; however, that will not occur at the beginning of a case. It is only possible after there has been a Court hearing before the Judge, and the Judge has heard evidence concerning the economic disadvantages which one side may have over the other. Such an order is not based upon which spouse requests the divorce.
DISCLAIMER: The information provided herein is not intended to substitute for an attorney’s advice. No attorney/client relationship is formed by this communication. You are strongly urged to obtain legal advice directly from an attorney.
Copyright Kathleen E. Matheu, Attorney at Law. All rights reserved.