FAQ – DIVORCE

What is a divorce?

Divorce is a court judgment ending a marriage or marital union, and the legal duties or responsibilities that come with a marriage or civil union.

What is a “no-fault” divorce?

In a “no-fault” divorce, the party or parties is/are saying that neither spouse did anything wrong to cause the breakdown of the marriage.   Texas allows people to get divorced without proving someone was “at fault” or caused the breakup. This is known most commonly as “irreconcilable differences,” or “incompatibility.”

Do I have to live physically apart from my spouse to file a divorce?

No. You can file a divorce while you are still physically residing with your spouse.

Do I need to hire an attorney to do my divorce?

Your decision to hire an attorney depends on the facts of your case.   An attorney can be extremely valuable to you and can save you money and time because of their expertise and counsel throughout the divorce process.

Does Texas grant divorce based on marital fault?

Yes.  Texas has the following fault grounds:  adultery, cruelty, felony conviction and abondment.

What do I do? I just got served with divorce papers by my spouse?                 

You will need to contact the divorce attorneys at Burns & Iwuji, PLLC immediately to make sure your rights are protected.   Failure to respond to your divorce petition may result in a default judgment being entered against you.  If a default judgment is entered against you, your spouse may be awarded more than he/she would normally be granted had you responded timely in seeking counsel.

How long will my divorce take?

In Texas there is a minimum 60 day waiting period from the day the divorce is filed to get your divorce finalized. The Court can waive the waiting period in certain scenarios where the respondent has been convicted of domestic violence.  There are other factors that may affect the length of time that it will take before your divorce is granted.  Those factors may include disputes regarding property, children, family violence claims that may require additional hearings, mediation, pregnancy, and a final trial.    Uncontested cases where the parties agree on all issues typically are resolved the fastest.

Do I need divorce in Texas since my husband and I are separated and living apart?

Yes, Texas does not recognize legal separation.   In Texas you are either, married or not married.  It is important to seek a divorce attorney to file a divorce if you no longer desire to be married to your spouse. Although you and your spouse are not living together, there may be financial consequences and implications that you should think about.  An experienced attorney can help you with that.

My spouse refuses to sign the divorce papers what do I do?

Texas law does not require you to remain handcuffed to your spouse if you desire to end your marital relationship.   Contact our office and we will let you know what we can do to properly give your spouse notice of a pending divorce action.

Are there any costs associated with Filing divorce?

Yes.   When you file your divorce you will be required to pay filing fees to the Clerk in the county you plan to file your divorce.  There may also be additional fees including process server fees, publication fees, and attorney ad litem (if required) fees.   Additional fees outside of the filing fees are determined on a case by case basis.

In lieu of paying court costs and court fees, the Court may waive your filing fees if you have low income and the Court determines that you cannot afford to pay your filing fees. Contact our Dallas Divorce attorneys if you think you qualify to have your filing fees waived.

Can I get my divorce if I’m pregnant?

No. Texas law requires that you cannot be currently expecting a child at the time that your divorce is finalized.   Your divorce can be finalized after you give birth to your child or children.

Does Texas recognize common law marriages?            

Yes.  Common law marriages are recognized in Texas.   To prove a common law marriage exists you must prove that:

The parties agreed to be married (agreement), and

After the agreement they cohabitated or lived together as husband and wife in Texas (cohabitation), and

They held themselves out to the public as being husband and wife (holding out).

These three requirements must be present at the same time.

I belong to the gay or lesbian community can I get a divorce?

Yes. Texas recognizes same sex marriages.  Yes, you or your spouse can file a divorce in Texas if you meet the statutory grounds for divorce.

How will custody issues be decided when going through divorce in Texas?

Texas standard of determining custody is the “best interest “standard.  The court has broad discretion in determining custody issues and can look at the following:

  • the child’s wishes;
  • the current and future emotional and physical needs of the child;
  • any current or future emotional and physical danger to the child;
  • the parenting abilities of each parent;
  • the programs available to assist each parent to promote the best interest of the child;
  • the plans for the child by each parent;
  • the stability of the proposed home; and
  • any acts or omissions of the parent that may indicate parental unfitness, and any explanations for such acts or omissions

Who pays child support?

In Texas, physical custody determines who will pay child support in Texas.  In some cases the Court may order both parties to make support payments for your child or children.   In most cases the party that has the child more will be entitled to child support and medical support from the other party.   The amount of child support paid is determined by the number of children the paying party is obligated to support and the income/resources available to him/her.

How will my property be divided in Texas?

In Texas, property is divided in a just and right division.   This typically means property is divided 50-50.  A spouse may be given a disproportionate share of the property if fault is found in the breakup of the marriage.

Can I change my name at the time of divorce?

Yes.  When you file a request for divorce or a counter petition you may request a name change in your pleading.   Your name change is not automatic and must be approved by the Judge.  You may only restore your maiden name and not change your name to a new name.

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