by Kelly McClure and Chris Meuse
As attorneys, we are often solicited for legal advice on areas of the law which we do not practice, and some of the most commonly asked questions of attorneys are those regarding family law. What follows are basic answers to frequently asked family law questions. Whether you are looking to help clients with family law issues or you just want something more to talk about at your next cocktail party, hopefully this cheat-sheet to 10 common family law questions will make you look like The Most Knowledgeable Non-Family Lawyer in the World.
1. Premarital and Post-Marital Agreements: “What can I do if my spouse is only after my money?”
Texas allows prospective spouses to contract their future relationship and marital property rights, including whether or not a community estate will be created during the marriage. Premarital agreements become effective on marriage and are enforceable without consideration; however, for an agreement to be valid, it must be in writing and signed by both parties. Also, it is vital that both parties enter the agreement voluntarily and with fair and reasonable disclosure of the other party’s assets and obligations.
2. Collaborative Divorce: “We can still be friends, right?”
Collaborative Law provides parties a means to a peaceable resolution of their family law dispute. In a collaborative case, a lawyer’s primary goal is to help the parties reach settlement, and routinely, a mental health professional and financial professional are also added to the “collaborative team.” The collaborative team meets with the clients, out of the courtroom, in joint sessions, discussing settlement and conducting informal discovery, in efforts to reach a final settlement.
3. Property Division: “Is my spouse going to get half?”
Many future divorcees believe Texas is a “50/50” state, meaning each spouse is going to receive half of the marital estate. However, Texas courts divide property in a manner the court deems “just and right.” Therefore, Texas is an “equitable,” not an “equal” state, so a party may receive a disproportionate share of the community estate.
4. Fault Grounds for Divorce: “How can I make my spouse pay for what they did to me!?”
Texas is considered a no-fault divorce state, so a court may grant a divorce without regard to fault. But Texas does still recognize fault grounds, such as cruelty, adultery and abandonment, and a court may consider these fault grounds in making a disproportionate distribution of the marital estate.
5. Waiting Periods: “How long is this all going to take?”
“When will I be divorced” is perhaps the most frequently asked question about the divorce process (other than “how much is this going to cost?”). Of course, one can never say how long a case will take; however, the Texas Family Code provides that a court may not grant a divorce before the 60th day after the date the suit for divorce was filed (with some exceptions).
6. Standing Orders and TROs: “What’s going to stop my spouse from taking all of our money?”
A common concern of parties to a divorce is the safeguarding of the marital estates during the divorce process. Many counties have standing orders enjoining parties from encumbering or expending marital assets. However, if a county does not have a standing order, it is advisable to file an application for temporary restraining order to preserve and protect the parties and parties’ property.
7. Spousal Maintenance: “I’m not going to have to get a job now, am I?”
It is common for spouses to inquire as to whether someone is going to be on-the-hook for spousal support. Texas is one of the most difficult states to secure an award of spousal maintenance because a Texas court may order maintenance only if the spouse seeking maintenance will lack sufficient property to provide for the spouse's minimum reasonable needs and meets the additional requirement(s) of Chapter 8 of the Texas Family Code.
8. Possession: “At least my spouse is not going to get the kids, right?”
It is a common misconception amongst prospective litigants that one party is going to have possession of the children an overwhelming majority of the time. However, it is the public policy of Texas to assure that children have frequent and continuing contact with both parents, and the Texas Legislature has created statutory guidelines for possession, known as the standard possession order, which provide reasonable, minimum possession of a child.
9. Child Support: “If I have the kids half the time, do I have to pay support?”
The primary consideration in awarding child support is the best interest of the child, so a party may still be required to pay child support, even if the part has equal possession. The Texas Family Code provides guidelines in awarding child support, but a court may stray from these guidelines, upon a proper showing. So when advising prospective clients, remember that equal possession does not equal a zero child support obligation.
10. Paternity: “What if the baby isn’t mine?”
If your prospective client is questioning the paternity of a child, it is vital to know that, if he is the presumed father, in most cases, he must commence a suit to adjudicate parentage no later than the fourth anniversary of the child’s date of birth.