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Divorce - What, where, how?Children, Custoday & ParentingFormsFamily Violence & Child AbuseWills & Estates LGBTQ Issues

 

Divorce

What is divorce? 

Divorce is a legal procedure to formally end a marriage.  It is a court proceeding that officially separates two people and dissolves any financial ties or responsibilties between those two people.

 

Do I have to prove anything to get divorced? 

No.  Texas adopted a no-fault divorce statute in 1975 which allows either spouse to request a divorce on the grounds of insupportability.  Insupportability is a legal word that means the spouses simply don't wish to remain married; it does not mean that one person has done something wrong or failed at marriage.  Prior to 1975, a person seeking a divorce had to prove that the other spouse had been unfaithful, was mentally diseased, committed a crime, or some other serious problem.  After 1975, the only evidence needed to seek a divorce is a sworn statement by one spouse that they no longer wish to be married.

 

How do I get divorced? Where do I go?

You must file a Petition for Dissolution (fancy name for divorce request form) with the County Clerk's office in the county where you currently live.  You must have a copy of the Petition delivered to your spouse.  Your spouse should then file an answer to your request.  Their answer can be as simple as "Yes."  The court will then ask you and your spouse to decide how any assets or debts acquired during the marriage will be divided.  If you cannot agree on a division of items, you can request that the Court decide for you both.  After the assets and debts have been divided, the court will sign an Order of Dissolution and formally end your marriage.  You are eligible to remarry the following day.


What forms will I need to file for divorce?

1. Original Petition for Divorce - This is the form that notifies the Court and your spouse that you wish to get divorced.

2. Answer to Original Petition - This is the form that notifies the Court and your spouse that you recieved a copy of thier Original Petition and understand they want to get divorced.  It is not an agreement or a denial - it is simply an acknoweledgement to the Court that you understand you spouse wants a divorce.

3. Final Order of Divorce - This is the final form used by the Court to officially divorce you and your spouse.  It can also order that one spouse's name be changed to a maiden name or new name.

The Texas Supreme Court has created a packet with instructions and all of the forms necessary to file an uncontested divorce, with no children and no titled land.  Download it by clicking HERE


Is it necessary to get divorced in court?

Yes.  Couples that do not legally end their marriage continue to be responsible for one another and to have rights regarding their spouses's finances and health decisions.  This can adversely affect one spouse, even if they haven't spoken to the other person in years.  

Example: Jack & Jill get married and buy a home.  Jill grows unhappy and decides to leave Jack.  Both Jack and Jill work hard but have little money. They do not think that they can afford an attorney and so they just agree to break up.  Jack keeps the hosue and Jill moves away to begin a new life.  Jack's financial sitauation does not improve and he begins to miss mortgage payments on the house.   3 years pass without them legally divorcing or speaking to one another.  Jill applies for a car loan and is denied becuase of bad credit.  She learns that Jack hasn't paid the mortgage payment in six months and the bank is foreclosing on the house.  Jill's name is still on the loan for the house which makes her responsible for those six months of unpaid payments.

 

Is there such a thing as Common Law Divorce?

No.  The only way to get divorced is with a court order.  While you can create a legally recognized common law marriage. there is no similar method for divorcing.  Living apart, even for many years, does not legally end a marriage and is not a defense to credit collectors.

 

Who decides what assets, possessions, and debts each person keeps?

The hardest part of a divorce can be determing who gets to keep the furniture, who pays off the credit card bills, and what to do with family pictures. There is no legal requirement that a couple split their assets and debts equally.  A couple is free to decide between themselves who gets what in a divorce.   If a couple cannot decide how to divide up their property, a Court will make the decision for them.  Texas is a community property state which means that any assets or debts created by either spouse during the marriage are shared equally between both people.  Courts generally give the wife 50% of any assets and debts and the husband the other 50% of any assets or debts.  If the debts are larger than any assets, a Court can order the assets sold to help pay off some of the marriage debts.   

Example: Jack & Jill wish to divorce.  They do not hate one another and do not wish to see the other person suffer needlessly.  Jack earns twice what Jill earns.  Jack agrees to pay off the credit card bills and car loan for Jill.  Jill agrees to let Jack sell the house and keep any money made from the sale.

Example: Maria & John married when they were young.  John earns a good salary at his job and Maria stays home with their daughter.  John soon learns that Maria is not financially savvy and often spends too much money while shopping.  He discovered that she maxxed out all of their credit cards and has created $8000 in debt.  John cancels the cards but discovers that Maria has opened up new credit cards at several stores.  Those credit cards are also maxxed out.  John decides to leave Maria and files a petition for divorce.  Maria wants to split the credit card bills equally with John.  John disagrees.  A court hears testimony from both sides about how, when, and why the credit cards debts were created.  The Court decides that Maria intentionally hid the bills from John and lied to him about how much shopping she was doing.  The court awards John primary custody of their daughter, gives Maria a standard visitation agreement, and makes her responsible for 75% of the credit card bills. 

 

Children, Custody, & Parenting - All the questions you wanted to ask in Sex Ed but couldn't.

Is it illegal to get pregant before turning 18?

No.  Texas does not criminalize people for becoming pregnant before turning 18.

 

Could somone get in trouble for being pregnant? 

Yes.  If the pregnancy resulted from rape or incest, the perpetrator (the rapist or incestuous older person) could be arrested and charged with a crime.  Texas laws do not prohibit anyone from getting pregnant so long as both parties were 17 years old or within 3 years of each other's age, and not immediately related.  Immediate relations include parents, siblings, aunts/uncles, children, and first cousins.

Example: It is legal for a 50 year old man and an unrelated 25 year old woman to get pregnant.

Example: It is legal for a 15 year old and an unrelated 16 year old to sleep together and get pregnant.

Example: It is ILLEGAL for a 20 year old to sleep with or impregate an unrelated 16 year old person.  Too much age difference with underage person.

Example: It is ILLEGAL for a 30 year old woman to get pregant by sleeping with her 25 year old nephew.  Incest.

 

I'm pregnant and thinking about my options.  Do I have to tell the father?

No.  A woman is free to decide what actions she wishes to take during her pregnancy. 

 

Is abortion illegal in Texas?

No. Texas laws continue to change and develop but a woman still has the right to decide whether or not to terminate her pregnancy, so long as she makes that decicision within the first 20 weeks of her pregnancy.  The manner and method by which she can obtain a pregnancy also continue to change in Texas and she may have no choice except a surgical procedure.  Current Texas law requires a woman to undergo an ultrasound and wait 24 hours before obtaining an abortion. 

 

Can I be forced to have an abortion?

No. Texas laws continue to change and develop but a woman still has the right to decide whether or not to terminate her pregnancy. 

 

Do I need the father's permission to give up a child for adoption?

Maybe.  It depends on whether or not the father has been recognized as the legal father. (See below for info about legal vs. biological father.)  If the child's legal father has been established, the father must end his legal relationship in order for an adotpion to take place.  If no legal father has been recognized, the mother or possessory conservator may relinquish custody and put the child up for adoption.

 

I've just learned that I'm a father.  Can I get arrested for not being there during the pregnancy? 

No.  A father's duty to support his offspring does not arise until legal paternity has been established. For married couples, Texas law assumes the husband is the father and puts his name on the birth certificate.  If a child is born to an unmarried mother, the biological father will not become the legal father until both parents submit an Acknowledgment of Paternity (AOP) to the Bureau of Vital Statistics.  An unmarried father must submit this form before he can apply for visitation rights. 

 

What if I'm not sure the child is mine?

Anyone who believes or suspects that a child is not their biological offspring may request a paternity test.  There is NO CHARGE for a paternity test.  For more information, contact the Texas Attorney General's Paternity Opportunity Program at (866) 255-2006.

 

What's the difference between a biological father and a legal father?

The biological father is the person who donated their sperm.  The legal father is the person reponsible for supporting the child financially.

 

Can I be banned from seeing my child if I don't pay child support? 

No.  The right to visitation and the right to pay child support are two separate legal issues.  The inability or unwillingness of one parent to pay support does not prevent that same parent from being able to visit and/or communicate with their child.   Texas law recognizes that a parent may strongly desire to visit their child and take an active role in the child's life, but be unable to meet monthly child support obligations due to unemployment, disability, or illness.   Likewise, even a parent who is rightfully frustrated by a lack of financial support cannot seek revenge by refusing to let the non-paying parent visit the children.

 

Why do I have to let my child visit someone who isn't paying support?

Texas law makes a strong distinction between visitation rights and financial support obligations.  A parent's right to visit with their child is rarely affected by their financial situation.  A parent that has been court ordered to pay support and consistently refuses to pay could be sanctioned by the court and ordered to serve time in jail.  However, that same court may also require the custodial parent to arrange for visits to the other parent while in jail.  The general idea is to keep children in contact with their parents in every situation except those that may physically or emotionally harm the child.  Thougt is not ideal for a child to visit their parent in a supervised lockup, it may still be less harmful than preventing that child from seeing their parent entirely.  A parent who refuses to let their children visit with the non-paying parent risks losing custody and having to pay court sanctions for failing to abide by the court's orders. 

 

What is custody?  What is a conservator?

Custody is the legal term for having the right to make decisions about your children.  All parents can have their custody rights limited by a divorce order.  Texas does not use the terms "full custody" and "joint custody" to describe divorced parents.  Instead, Texas calls each parent a "joint managing conservator" and one parent is designated as having the right to determine primary residence.  This parent is known as the "primary managing conservator".  In situations where only one parent is alive or acknowledged, the term used is "sole managing conservator."    The basic idea is that each parent has the same right to make decisions for the child but one parent (the primary managing conservator) also gets to decide where that child will live and sleep most nights.

 

Who decides when I can see my child?

Parents are free to come up with any visitation agreement that they want.  The state of Texas and court sytem will only get invovled if both parents disagree on a visitation plan.  Assuming that both parents are decent and non-abusive, the state of Texas will likley impose it's Standard Possession Order, as written in Ch. 153.3 of the Texas Family Code.  There are about two standard orders - one order for families that reside within 100 miles of one another and another for families that live more than 100 miles apart.  The SPO for people within 100 miles generally gives the possessory parent (i.e. the parent who the kids don't live with most) the right to visit their child every other weekend from 6pm Friday until 6pm Sunday, every Thursday evening from 6pm-8pm, two weeks in the summer, the week of Spring break in odd numbered years, and at least 2 hours on the child's birthday every year.  Major holidays alternate between parents each year with one parent getting Thanksgiving and one parent getting Christmas. The respective parent has the right to visit the children every year on Mother and Father's days.  Example: Dad gets children for Christmas in even years and for Thanksgiving in odd years. 

 

Can I be forced to visit with the children?

No.  A person cannot be forced to visit or communicate with their offspring.  However, a parent has an obligation to support their children and that parent can be forced to pay child support for a child even if they've never met or spoken.  It is legally possible for someone to pay child support for 18 years and never communicate with the child benefitted by the support.  While a parent may be required to respond to a state agency or school official about their children's welfare, that parent is not obligated to respond to the child's calls or communications. 

Example: Ellen, the non-possessory parent, pays child support every month.  Ellen must respond to requests from the Attorney General about late support payments.  Ellen does not have to answer her child's emails asking where Ellen has gone.

 

My children are adults.  Can I force them to talk to me?

No. There is no law that requires children over the age of 18 to keep in contact with their parents.  In fact, you could be charged with harassment if your child has made it clear that they do not wish to speak with you and you continue to contact them.  However, if that parent is also responsible for helping you out financially and you refuse to call them back, you may find out that you can't call anyone because your parent stopped paying your cell phone bill. 

 

What is child support?

It is money and financial support paid to cover the normal costs and expenses of raising a child. A Texas court may order a parent to support his or her child until the child turns 18 years-old, or graduates from high school (whichever occurs later), or until the child marries or dies, or is emancipated (declared an adult) by court order. If the child is disabled, the court may order a parent to financially support the child indefinitely. 

 

Who pays for child support?

The possessory parent usually pays support each month to the primary managing conservator.  In basic terms, the parent with weekend visits must pay support to the parent with whom the child lives most often.

 

How much does child support cost?

There is no maximum amount of support that a parent can pay to support their child.  Parents are free to decide how much support is needed, who pays for what, when those payments are made, and to whom the payments are given.  If parents cannot or do not make a child support agreement, either parent can ask the state of Texas to determine how much support is needed.  Texas has developed a mathematical formula to calculate child support and it looks at a person's total monthly earnings, personal medical costs, and tax obligations.  For detailed information about calculating support and an online calculator, visit the Texas Attorney General's website @ https://www.oag.state.tx.us/cs/

 

What does the Attorney General's office have to do with child support?

The Texas Attorney General assists parents seeking child support payments from Texas residents. Any parent with a child support court order can hire the Texas Attorney General to collect those child support payments each monthy by locating the absentee parent, contacting that parent's employer, and garnishing the wages of that parent.  These support services are provided by Federal law and are often provided at no cost to you.  The Attorney General's office also runs a child support evaders program that helps locate and bring to justice delinquent parents.

 

Does the mom always win in a custody case?

No.  A common misconception of divorce and child custody is that one parent, usually the mother, gets everything she wants in court and the father gets stuck paying bills.  A court will award custody to the parent that is most capable and that wishes to have primary custody.  A court will look at each parent's ability to financially, emotionally, and physically support the child.  A single father who works full time, is emotionally stable, and has a secure home would be awarded primary custody over a mother who is unemployed, living with friends, and dealing with depression.  The mother can be ordered to pay child support to the father.

 

FORMS - Do It Yourself

Uncontested Divorce (no kids, no property) - Download HERE

Uncontested Divorce with Children - Download HERE

Enforcement of Visitation Rights - Download HERE

Protective Orders - Download HERE

Name Change for Adult - Download HERE

Name Change for Child - Download HERE

 

FAMILY VIOLENCE & CHILD ABUSE

 

What is the legal definition of family violence?

Texas Family Code § 71.004 defines family violence as an assault or threatening crime that occurs between people related by blood/marriage, people who reside together, and/or people involved in a romantic relationship.  It is not always necessary to have a marital or blood relationship with someone for it to be considered domestic violence.

 

I am in an unsafe situation.  Who can I call for help?

Hays Caldwell Women's Center - 512-878-0382

Crisis Center of Comal County - 830-620-7520   (24-Hour Help @ 1-800-434-8013)

Safeplace of Austin - 512-267-7233

Family Violence Prevention Services of San Antonio - 210-733-8810

 


Protective Orders, Restraining Orders, Stay Away Orders - What are they?  How do I get one?

A protective order is a civil court order issued to prevent continuing acts of family violence.  A restraining order is issued by a judge in a divorce trial to prevent one spouse from selling or disposing of certain items (ex: prevent one spouse from selling other spouse's comic book collection).  A protective order is used to protect someone against future violence; a restraining order is used to protect someone from losing property in a divorce. 

In order to get a protective order, you must prove that an act of violence against you has occurred and that you reasonably fear it will happen again.  For detailed information about obtaining and enforcing a protective order, please visit the Texas Attorney General's website @ https://www.oag.state.tx.us/victims/protective.shtml.  You may also call the Attorney for Students @512-245-2370 to schedule a free confidential appointment to talk about your rights and options.

 

What is the legal definition of child abuse?

Chapter 261 of the Texas Family Code defines childe abuse as any act or omission that endangers or impairs a child’s physical, mental or emotional health and development.  This law includes both mental and physical abuse, but excludes reasonable discipline methods by parents or guardians.  The reasonableness of any particular method is decided on a case by case basis.  There are also assault laws found in the Texas Penal Code that require enhanced punishment if the victim was a child.

 

Who can I tell if I suspect a child or elderly person is being abused?

The Texas Department of Family and Protective Services (DFPS) has a nationwide 24 hour phone line and website to take abuse reports.  Call 1-800-252-5400 to confidentially report suspected abuse 24 hours a day, seven days a week.  You can also report suspected abuse online @ https://www.txabusehotline.org/ and receive a response within 24 hours.

If you are concerned about a child's immediate safety or welfare, you can always call 911.

 

WILLS & ESTATE PLANNING

Common Terms & Definitions - The legal world of estate planning and will drafting is filled with strange sounding names and terms.  This is a short list of basic terms to help you get started understanding your own estate plans or the plans left by a family member.

  • Deceased - loved one who has passed away and left a Will.
  • Will - A legal document created prior to death by the deceased with instructions about how to dissolve/distribute/donate any items, money, or property owned by the deceased.
  • Probate - Legal process in which a dead person's Will is submitted to a court and carried out according to the terms of the Will.
  • Heirs - Family members of the deceased and/or people given things in the Will.
  • Executor - The person chosen by the deceased to follow the Will's instructions.
  • Trust -
  • Trustee - Title given to someone who may be put in charge of money for someone else.  A common Trustee situation arises when underage children inherit large sums of money from relatives. Example: John left his 10 year old niece $15,000 to be held in trust until she turns 21. The child's mother is named Trustee of the account and must guard the money until her child turns 21.
  • Intestate - Legal word uses to describe people who die without a Will.
  • Intestate Succession - Flowchart of inheritance created by Texas law to decide who gets what if no Will existed. 

 

What is a will?

In its most basic form, a will is simply a piece of paper with written instructions about how a person wishes their property to be distributed when they die.  It can be as simple or as complex as a person wishes it to be. It is not always necessary to have an attorney draft your will, however most online do-it-yourself will kits are not legal in Texas because they lack critical elements.  It is always safest to check with a lawyer and make certain that your final wishes are in place.

 

Why have a will?

In addition to disposing of your possessions, a will can be a final message to family and friends, and can notify loved ones of other assets that may exist like life insurance.  Without a will, your family may be forced to spend hundreds of dollars changing the name on a car title or bank account.

 

What is probate?

Probate is the name given to describe the legal process of having a Will recognized by a court and powers bestowed upon the Executor of the Will.  The Executor is a person named by the deceased to carry out the terms of hte will; it is usually a spouse or family member, but does not have to be.  The Executor is responsible for filing the Will in Court to start probate, asking for a letter of authority from the Court, transferring property and car titles to the heirs, paying any funeral expenses, and distributing any cash or personal possessions to the heirs.

 

What is intestate succession or intestacy?

If a person dies without leaving a will, they are said to have died intestate.  If they were married and had no children by another person, their spouse inherits everything.  If, however, the deceased had a child by another marriage, the remaining spouse and that child inherit EQUALLY.  This can have very serious consequences for non-traditional families.  Example:  Tom has a son from his first marriage.  Tom remarried and has three chldren with his spouse.  Tom dies without leaving a Will.  Tom's spouse and three children inherit EQUALLY to his son from his first marriage.  His wife and three children will get 50% of Tom's assets and his son will get the other 50%.  It does not matter if Tom hasn't spoken to that son in decades or if that son has refused to have anything to do with Tom.  Without a Will, the Texas intestate laws will apply and Tom's property will be evenly divided.

 

What is a living will?

Also known as a "Directive to Physicians", a living will indicates to hospital workers and loved ones what decision to make if you are on life support.  There are two basic decisions: 1) what do you want done if your body systems are functioning but your brain may not be and 2) what do you want done if your brain may be functioning but your body cannot support itself without constant care.