Frequently Asked Questions Answered By Our Austin and Lakeway Divorce Lawyer.

What does “Board Certified” mean?

Board Certification is a voluntary designation program regulated by the Texas Board of Legal Specialization for legal assistants and attorneys. Initial certification is valid for a period of five years. To remain board certified, legal assistants and attorneys are required to apply for re-certification every five years and meet considerable involvement, peer review and continuing legal education requirements for the area of specialization. An attorney must meet the following criteria to become Board Certified in Family Law:
  • Been licensed to practice law for a minimum of five years;
  • Dedicated a required percentage of practice to Family Law for a minimum of three years;
  • Handled a wide variety of Family Law matters to establish involvement and experience;
  • Regularly attended Family Law education seminars to remain current on legal training;
  • Been evaluated by judges and fellow lawyers;
  • Successfully completed a 6-hour written examination about Family Law.
Approximately only 1% of Texas Attorneys are Board Certified. Christopher C. Merritt has been Board Certified in Family Law since 2001.

Why should I hire a board certified attorney?

While attorneys who are licensed to practice law in Texas are capable of handling family law cases, a board certified family law attorney has dedicated a significant percentage of his or her practice to family law and has substantial experience with family law cases in a courtroom. Additionally, a board certified family law attorney has successfully completed rigorous testing in this specific area of law. Your case involves issues that are most valuable to you, your family, and/or property. Retaining a board certified attorney provides the security of knowing that you have an attorney who is experienced and knowledgeable about issues that may arise in your case in this area of the law.

How much will my divorce cost?

This depends on a variety of factors related to your case such as property disputes, protecting assets, child custody issues, and/or going to trial. Costs vary, with most cases anywhere between $2,500 and $25,000. However, the more issues resolved between yourself and your spouse without the help of a lawyer, the more affordable your divorce will be. Further, in most cases we first encourage mediation rather than court intervention in an effort to minimize costs.

Who pays the fees?

In agreed divorces, a lot of couples pay their own attorney fees. However, there are instances in which the courts require the use of the divorcing parties' community property estate to pay for attorney's fees. In addition, attorney's fees are sometimes available in child custody or enforcement actions.

What forms of payment do you accept?

We accept cash, money orders, Visa/MasterCard, and checks.

How can I save money in my case?

Client involvement directly affects costs. We encourage our clients to actively participate in the preparation of their own case. We often assign "homework" to our clients, including gathering financial information, making lists of witnesses with knowledge, and getting prepared for YOUR case.

How long will my divorce take?

Once the Original Petition for Divorce is filed with the court, the court does not grant the divorce for at least 60 days, a “cooling off” period in Texas laws. However, the divorce can take longer if the parties are working out the terms of the divorce, such as property division, child support, custody of children, etc. If an agreement is not reached, either party can schedule a hearing any time after the 60 day “cooling off” period. At this hearing the judge or jury will hear from each side and rule on issues that are not agreed to. It is our experience that an “average” divorce takes between six to nine months.

Can I keep my spouse from getting a divorce?

It is not possible for one spouse to legally prevent the other spouse from getting a divorce. In Texas, assuming the residency requirements have been met if one spouse wants a divorce, he or she can obtain one.

What are the steps in getting a divorce?

  1. Filing the petition: To initiate a divorce, the first step to file an Original Petition for Divorce. The Original Petition for Divorce is a simple document that names the parties and any children of the marriage and one of the spouses (the Petitioner), is seeking a divorce and the grounds for the divorce (the reasons).  He or she may also state some of the things that the Petitioner may ask the court to decide, such as orders providing for the children, division of property, and attorney's fees. Once the Petition is filed the Petitioner must pay a filing fee to the court which is usually around $260. The 60 day waiting period begins when the Petition is filed, however, it is not a court order and does not establish anything legally. It is simply a statement by the Petitioner that he/she wishes to have the marriage dissolved.
  2. Grounds: Currently, the most common ground for divorce in Texas is insupportability (incompatibility). The sole allegation necessary in the divorce petition is that "the marriage has become insupportable because of personality conflicts which have destroyed the legitimate ends of the marriage relationship", also referred to as no-fault divorce. In some states this is referred to as “irreconcilable differences”, a term you’re more likely familiar with. The law also provides as possible grounds incurable insanity, living apart for three years, adultery, cruelty, abandonment, and conviction of a felony. These other grounds not used often, but, if you have such grounds, you should discuss them with your attorney.
  3. Residency: The next important item is residency. You or your spouse must have been a resident of the State of Texas for a period of at least six months and a resident of the county in which you seek to file suit for divorce for a period of a minimum of ninety consecutive days immediately prior to filing the Petition.
  4. Service on the Respondent: The court must have some evidence that the other spouse (the Respondent) has received a copy of the Petition and therefore knows that a divorce lawsuit is actively pending. One way to provide this evidence is for the Respondent to file a Waiver or an Answer. The Waiver states that the Respondent has received a copy of the Petition. It is voluntarily signed by the Respondent and notarized and then filed with the Court. If you are asked to sign a Waiver by your spouse or your spouse's lawyer, do not do so without first consulting your own attorney. It may contain additional language that can seriously affect your rights.The Respondent may instead file an Answer, usually prepared by their attorney, the thereby enter their appearance in the case. If the Respondent does not file a Waiver or an Answer, the Petitioner must arrange for a constable or private process server to hand a copy of the Petition to the spouse. This method is called service of citation or service of process. After serving the petition the constable or private process server returns the citation to the courthouse, where it will be filed and establishes proof that the Respondent has received a copy of the Petition. This method costs the Petitioner a service fee of approximately $70 and may potentially embarrass the Respondent. It can be avoided if the Respondent voluntarily enters an appearance in the case by filing either a Waiver or an Answer. Once served, the Respondent will be obligated to file an Answer with the court within a set period of time.

I have been served with lawsuit paperwork . . . what do I do now?

Contact an attorney immediately to schedule a consultation if you have been formally served with paperwork notifying you of a lawsuit. A default judgment may be entered against you adversely affecting your rights if you fail to file an Answer to a lawsuit in a timely manner.

What are Temporary Orders?

One or both of the spouses may need court orders immediately after filing for the divorce to determine how the parties' relationship with the children and/or finances will be handled until the divorce has been finalized. These Temporary Orders could include temporary alimony, child support, child custody, and provisions as to who pays what debts during the divorce process and/or who has the right to temporary use of the house and other community property. Speak to your attorney if you believe you need Temporary Orders.

How can the terms of the divorce be worked out?

The terms of the Final Decree of Divorce (the legal document dissolving marriage) are either determined by agreement of the parties or, in the event the parties are not able to agree, by the judge or jury. During the 60 day waiting period, the parties with their lawyers attempt to negotiate the terms of the divorce (division of property and debts, custody/visitation of the children, child support, etc). The parties can negotiate directly with each other or allow the lawyers try to work it out - or a combination of both approaches. Another alternative is mediation. During mediation, the parties meet with a mediator - a neutral third party who assists the parties and tries to reach an agreement. Generally your lawyer will also be present a mediation. The idea is to settle the terms of your divorce in a less expensive and less caustic way. Some parties are not able to reach an agreement on all or some of their divorce issues, even after negotiating informally outside of court or formally through mediation. In these instances the parties' attorneys will present any unresolved matter to the judge or jury, who then make a final decision. If the spouses reach an agreement, one of the lawyers will write up the agreement as part of the Final Decree of Divorce and both parties and their lawyers will sign it. If the parties agree on the final terms of the divorce, the judge will sign the Decree after a very short appearance in court by one of the parties accompanied by their attorney.

Can the Decree ever be changed?

The property division, once agreed to and a mediated settlement agreement and/or final order is signed, is binding and final and the parties cannot later change their minds about the terms. If the Final Decree is ordered by the judge after a trial, it may be appealable, but only if the judge made legal errors that caused an unjust result or made decisions that were not supported by the evidence. Merely disagreeing with the judge's order is not sufficient grounds to appeal it. If the decree is not appealed within 30 days, it is normally final as to the property division and cannot be changed. However, all court orders regarding the children are subject to future change. Thus either party has the right to return to court later and ask that child support be increased or decreased or that visitation or custody be changed. But to do so, the party wanting the change must show the court that a significant change of circumstances has occurred that makes this change necessary or that the last order has become unworkable. Such changes are not made lightly by courts.

How can I learn about my spouse’s property and other activities?

Often, one of the spouses knows almost nothing about the property acquired during marriage. Without this knowledge it may be impossible to proceed with negotiations regarding property division. If this is the case, the lawyer can require the other spouse to provide all relevant information about the spouse's property, debts and income. This process is called "discovery" and may take some time depending on the complexity of the parties’ property and finances. Furthermore, if child custody is disputed, both parties may require information from each other that are pertinent to this issue.

How does child custody work in Texas?

Most people think "custody" means which parent has possession of the children most of the time. In Texas, this is not how the term custody is used. Primary custody refers to the parent that has the right to make decisions about the children, such as what doctor they see or which school they go to. The amount of time the children spend time with each parent is a completely separate matter. Historically, one parent was named Sole Managing Conservator and the other parent was named Possessory Conservator. The Sole Managing Conservator formerly had the exclusive right to make all major decisions regarding the children's residency, health care, education, and so forth. However, as of September 1, 1995, the legal presumption in Texas is that the parents should be named Joint Managing Conservators. The effect of this presumption is that the rights and powers of a parent are somehow to be divided between both parents or exercised by joint agreement. When Joint Managing Conservatorship is awarded, the parties or the judge must decide and write into the decree how those rights are to be exercised. Normally, one parent is awarded the right to determine the primary residence of the children. Sometimes this right will be limited by a residency restriction. A residency restriction limits the geographic area where the children may primarily reside. Examples of such restrictions are the State of Texas, a specific county or counties, a particular school district, or even within the attendance boundaries of a certain school. As of September 1, 2009, parents may agree that neither parent be awarded the right to determine the primary residence of the children so long as the children’s residence is limited to a specified geographic area.

What is standard visitation?

The parties can establish any schedule for each parent's periods of possession of the children that fits their needs and those of the children. In fact, the court encourages the parents to arrange periods of possession by agreement as much as possible and to stay flexible to adjust to circumstances. However, the Final Decree of Divorce must include a visitation schedule that will control if the parties cannot agree in the future. Ideally parties will agree on a written schedule to be placed in their Decree. But if they don't agree on a custom schedule the judge must order one, which typically is the "Standard Possession Order."

If the parties live within 100 miles of each other, this standard schedule allows for possession by the parent with whom the children do not primarily reside on the 1st, 3rd, and 5th weekends of each month from 6:00 p.m. (or the time school lets out) on Friday until 6:00 p.m. on the following Sunday (or when school resumes the following Monday); Thursdays during the school year each week from 6:00 p.m. to 8:00 p.m. (or from the time school lets out until the time school resumes on the following day).; alternating Thanksgiving and Spring Break holidays; either the first or second part of the Christmas break depending on the year, using noon on December 28 as the exchange time, and thirty days during the summer break. If this parent lives farther than 100 miles away, the weekend and weekday periods may be modified to include either the 1st, 3rd, and 5th weekends or one weekend per month at the election of the person receiving the visitation.  The mid-week visitation is omitted and he or she will have visitation given every Spring Break and for 42 days of the school summer break.

Occasionally, one parent believes that the other's time with the children should be reduced to less than the standard possession order either because the children are very young or because one parent doesn't trust the other one to take proper care of the children. Such restrictions might, for example, mean no overnight periods of possession, not taking the children out of the country, or supervised possession. However, if this restriction is not agreed to by both parents, the court can order it only if it finds that such limitation is necessary for the safety of the children and/or in their best interests. It is not uncommon for the court to restrict overnight possession or lengthy summer periods for infants or very young children. The standard possession schedule described above applies only to children three years old or older.

How will my marital property be divided?

All of the property you two have gained during the marriage because of your earnings is commonly referred to as community property. Separate property is any property you owned prior to the marriage or have acquired through inheritance or gifts; in addition, certain types of monies recovered independently from lawsuits may be characterized as separate property.

Debts that are separate are (1) incurred prior to marriage and (2) incurred during marriage that were secured by the separate property of one spouse with a statement from the lender to look only to that spouse's separate property for security of that obligation.

All separate property and separate debts are automatically awarded to the spouse whose name they are in. The other spouse has no claim on the separate property and no legal obligation for the separate debts.

Texas law also provides that, if you divorce in Texas and have property that you acquired while living outside of Texas and that property would have been community property if it had been acquired in Texas, the court shall treat it as community property.

In Texas, upon divorce maritial property is subject to what is called a "just and right division. Community property is commonly divided fairly evenly between the parties, just as are all community debts. However, if you do not agree on the division of property and the judge must decide, the judge will have some discretion in dividing the property unevenly. If one spouse has considerably less earning capability that the other, the judge will likely take that into account and award that spouse reasonably more than half of the community property. The judge may also rule similarly for an innocent spouse who has suffered from the other spouse's abuse, mismanagement of community funds, or if adultery has occurred. It is possible other disproportionate distributions of community property be made in uncommon circumstances, such as the disability of one spouse or of a child.

Also, if community assets have been used to make payments on one spouse's separate property, the community could possibly have the right to be reimbursed for those expenses. For example, if the husband owned before marriage the dwelling that the spouses live in, and during the marriage the spouses made payments on the dwelling from their joint earnings, the wife may be entitled to some reimbursement for those payments at divorce. Furthermore, if one spouse's separate property has contributed to the community estate or to the other spouse's separate estate, it’s the possible the contributing spouse could be entitled to reimbursement.

Determining whether property is community or separate and whether there is any right to reimbursement can be complicated. You may be asked a lot of questions about the date on which property was acquired, the source of assets, and the credit used to purchase.

Whenever possible, the community property should be divided during divorce so that each spouse receives a fair share. This is usually done by determining what each asset is worth and then dividing the property so that each person gets a relatively equal value share. When cash or other liquid assets are involved, it is not a challenge to make such a division. If an asset cannot be divided or the parties do not want to divide it, it can be given to one spouse and something else of similar value given to the other spouse. Parties often get into arguments about who gets the refrigerator and whether the bed is worth more than the lawn mower. Such arguments can cause an increase in attorney's fees by an amount that is more than the actual property is worth, so for the best results to be prepared to be reasonable and willing to compromise in these situations.

Sometimes there is simply no way to divide an asset evenly. For example, the parties may own a home or a family business that comprises most of their community assets. If one party is awarded the house, there is not enough community property to compensate the other with something else of equal value. This challenge can be addressed in multiple ways. The other party may be given a lien against the house to be paid off when the house is sold or over a set period of time; alternatively, both parties may continue to own the house together after the divorce with an agreement to sell it and split the loss or proceeds at a later date.

How is child support calculated?

The Texas Family Code has child support guidelines which recommend that the Possessory Conservator or the non-primary Joint Managing Conservators pay a percentage of their net resources in child support. "Net resources" is defined as all income after taxes, social security, union dues, and health care insurance for the children are subtracted. The guidelines are dependent upon the number of children involved: One child - 20% Two children - 25% Three children - 30% Four children - 35% Five children - 40% Six or more children - not less than for five children The court can fluctuate from these guidelines if it finds uncommon circumstances warranting higher or lower support. These percentage guidelines apply only to the first $7,500.00 of the monthly net resources. The court presumes that the appropriate percentage of $7,500.00 is adequate support for children, and it is up to the receiving parent to provide evidence to the court that the children need more. If the paying parent nets significantly more than $7.500.00 a month and the children's needs justify higher child support, the court may order higher support. Additionally, the court typically orders the child support-paying spouse to also pay for the cost of the children's medical insurance. Uninsured medical expenses, including co-pays or deductible amounts are generally paid equally by each parent. The income of the custodial parent may be considered in setting child support, but it will probably have little effect on the amount of child support ordered.

How will our debts be divided when we divorce?

Assets are not the only property divided upon divorce. Liabilities or debts must also be divided. Here are examples of some common debts that are divided in a divorce. 1.) Mortgage: Generally parties agree that one spouse will keep the house after divorce. Technically, the other spouse (who was not awarded the house in the division of property) remains accountable for that house mortgage until the note has been paid off or refinanced. In the decree, the judge will award the house to one party and order that spouse to pay the note but if the he or she defaults on those payments, the mortgage company will still look to the other spouse for payment. However, if a party defaults on the mortgage, an instrument called a Deed of Trust to Secure Assumption (signed at the time of the divorce) gives the other spouse to the right to resume ownership of the house and foreclose. Both parties’ names for the mortgage may still appear on credit reports, thus possibly affecting credit and the capacity to secure a mortgage for another residence. In some instances if you send the mortgage company a copy of the Deed, Deed of Trust, and Divorce Decree they will remove one spouse’s name (the party who did not receive the house in the divorce) from the credit reports. Also, while pursuing a new mortgage sending these same documents to possible lenders from whom you are seeking credit, may make them more likely to ignore that mortgage obligation. 2.) Credit Cards: Both parties need to decide who will keep which credit cards. Then you must notify the credit card companies that you are divorcing and that (1) if the account is one that your spouse is keeping, you are no longer responsible for any future debts on it, and (2) if it is an account that you are keeping, you are no longer responsible for any future debt that your spouse incurs on it. It is helpful to send letters signed by both of you if you can. Bear in mind that creditors are not bound by the division of debts in your Divorce Decree. If your spouse agrees to take on a credit card debt that was previously in both names and he or she does not pay that debt, the credit card company still has the ability to sue you for the amount that is owed. Consequently, it may not be a good idea to equalize the division of property by giving your spouse debts that he or she may not pay.

How should I handle property and debts after the Petition is filed but before the Divorce is final?

We do not advise clients to sell any property of considerable value or acquire significant debt during your divorce.  It is possible that you could be penalized by the court for doing so.

Is alimony allowed in Texas?

In all divorces filed after August of 1995, the court can order that one spouse pay support to the other after the divorce has been finalized. In other states this is referred to as “alimony” but in Texas it is referred to as spousal maintenance. However, the availability to qualify for spousal maintenance is limited to cases in which (1) the marriage lasted at least ten years, (2) the spouse seeking support lacks sufficient property to provide for his or her minimum reasonable needs, (3) the spouse seeking support (a) is unable to support herself or himself due to an incapacitation (such as physical and/or mental disability) that prevents that spouse from being employed, or (b) lacks earning ability adequate to support his or her minimum reasonable needs, and (4) the spouse seeking support is the custodian of a child of the marriage who requires substantial care and personal supervision because of a physical and/or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs. A spouse may also, however, seek spousal maintenance if the other spouse has received deferred adjudication or has been convicted of a criminal offense involving domestic violence within two years before the divorce was filed or during the pendency of the suit. There are many notable restrictions on awards of spousal maintenance. Unless the spouse seeking alimony has a serious physical mental disability, the court may not order spousal maintenance for more than the time period or amount allowed by the statute. For marriages lasting a minimum of 10 years but not more than 20 years, the duration of court-ordered spousal maintenance is not to exceed more than five years. For marriages lasting at least 20 years but not more than 30 years, the duration of court-ordered spousal maintenance is not to exceed seven years. For marriages lasting 30 years or more, the duration of court-ordered spousal maintenance is not to exceed ten years. Regardless of the length of the marriage, the court may not order spousal maintenance to exceed the lesser of $5,000.00 or 20% of the paying-spouse's average gross monthly income and in no event should it be for more than the "minimum reasonable needs" of the spouse seeking support. However, all of these limitations above apply solely to court-ordered spousal maintenance. The parties can independently contractually agree to any amount of alimony and for any length of time.

Is counseling required?

In certain occasions, a judge can order counseling during the divorce process if he or she believes the marriage is salvageable. Judges can also order counseling for children if it is necessary for the children’s well being.

What is Collaborative Law?

Collaborative Law can be an effective alternative to traditional divorce. This method focuses on parties trying to find a “win-win” solution instead of focusing on getting the largest financial reward. Collaborative law encourages participants to work together respectfully, in good faith and honestly. During the Collaborative Process neither of the parties can go to court or threaten to go to court. In the unlikely event that either party believes court would be a more viable alternative, the Collaborative Law process is terminated and both will need to hire new lawyers to handle their case in court. The professionals on the Collaborative Law Team owe primary allegiance and duty to their own clients, however, know the best way to the highest interests of their clients is to act with the spirit of cooperation, integrity, and mutual respect. Even though a marriage is ending, the Collaborative Law process recognizes that obligations and relationships continue, especially when children are involved. During the process spouses can formulate agreements that focus on the most important mutual and individual goals allowing all family members to move forward in a positive way.

Final Thoughts:

Divorce can be a painful process for the whole family, but this does not mean that the divorce is a mistake or wrong. The strong emotions that accompany separation may be difficult, but it may ultimately be better for everyone. Maintaining a destructive family relationship can be more damaging to children than separation. It is a good idea for members of the family to attend professional counseling. The wide range of emotions experienced during this time can be a challenge even for people who consider themselves well-adjusted. An effective counselor will promote mental health and peace of mind by helping you work through your emotions and issues. In certain situations a skilled counselor can also advise you as to how to help your children through the many transitions associate with divorce. No matter how well children appear to be taking it, all children need special help and emotional guidance.