Clients frequently have more questions than can be answered in a short time. This "FAQ" is designed to allow legal consumers to get an understanding of some general principles involved in family law. It does NOT provide a "how to" for obtaining a divorce and it does not take into account any particular situation. It IS written solely with Texas law in mind.

I have tried to answer questions that are interesting and that show some of the underlying philosophy of Texas family law. If you have other questions that might be of general interest, then please write me at the email address at the bottom of this page and I will try to add your question. Look back whenever you want to see if there is anything new here.

1. HOW MUCH DOES A DIVORCE COST?

The most frequent question that I get from prospective clients is, "How much does a divorce cost?" Unfortunately, there is no easy answer to that question.

The most accurate response is that it depends on the husband and wife and, of course, their attorneys. It also depends on the nature of their property and whether or not they have children.

The filing fee for a divorce in Tarrant County is now well over $200. In addition, it costs at least $58.00 to have the other party (the respondent) served with a citation. The citation service costs can be avoided if the respondent agrees to waive being served.

As I said, the cost of legal fees can, and does, vary widely. For an extremely simple divorce with no arguments about anything, it typically takes about two hours to interview the client, draft the ORIGINAL PETITION FOR DIVORCE, file the petition and obtain service. Drafting the FINAL DECREE OF DIVORCE and having it entered can be done in less than three hours.

Then why does it usually cost so much more?

Of course, most divorces cost much more than that. One primary reason is that some divorces are very complicated. They may involve substantial property with valuation problems, untested legal theories, or abuse and violence issues.

The main reason, however, for the high cost of some divorces is the contentiousness of one or both of the spouses. Some divorcing people simply have to fight over every single issue. If a client calls me to discuss what his or her spouse said during a child's visit, it will frequently take additional action on my part. A 10 minute phone call might necessitate an hour's worth of study of the file, calls to the other spouse's attorney or discussions or letters to the attorney or a county agency. It could even possibly require a motion in court where it would take several hours to draft and file a motion, set a hearing, attend a hearing and then draft a temporary order. Of course, if one spouse initiates such a process, the other spouse has to respond. Issues that could be costly to the client include child support, possession, use of property, and injunctions. Any one of those issues might result in thousands of dollars of additional legal costs alone.

So, what can I do about that?

There are several steps that one party might take to avoid excess litigation. First, be aware of the amount of time that you are asking your attorney to spend. "Is it worth it?" "Do I really need my attorney to do that or is there a less expensive option?"

It is extremely easy for the cost of a divorce to double in a short period of time. For example, the parties might want or need temporary orders for child support, possession, or use of property. It takes almost as much time to draft a motion of temporary orders and an order on temporary orders as it does to draft a petition for divorce and final decree. If a hearing is needed, that alone could take up to a full day, perhaps more.

Your attorney should be at the forefront of keeping your cost to a minimum by trying to work all issues out with as little argument as possible. There is no need to file motions or have hearings on most issues. Only the client or the client's spouse can force the attorney to 'up the pressure' on the other side. I do not advocate 'rolling over' on every issue, but don't spend a couple of thousand dollars to get three months of child support increased by $100. Believe it or not, this is done!

Of course, you have no control over your spouse or his or her attorney. You might be forced into defending your rights in the marital estate or your children. If the other side is particularly aggressive, then there are programs that both parties can be ordered to attend that help people learn how to work together. If children are involved, the Tarrant County Family Law judges are more than happy to order that both parents attend these programs.

One of the best methods of controlling costs is to mediate your divorce. Of course, you have to pay the mediator and your attorney must prepare for mediation as if it were a trial, but in all, mediation by a skilled mediator can dramatically lower the cost of the divorce. Typically, the mediator will meet with each party and his or her attorney separately and help to negotiate an agreement. It is not unusual for a mediator to obtain agreement on an offer that would have been rejected if it had come directly from the other party. The advantage is that once the parties agree, the divorce can be concluded in a short period of time with no additional acrimony. Parties frequently leave a mediation looking ahead instead of behind. There is no way to describe the benefit to the children when this happens.

I have seen divorces that were somewhat complicated and that should have taken $2,000 to $3,000 worth of my time take as much as $40,000 worth of time due to the unwillingness of the spouses to agree to anything. Every issue had to be fought out, often in a courtroom. If you can avoid this situation, your divorce or other family law matter will not only be less expensive, but will assuredly be easier on your nerves and better for your children if you have any.

2. MY "EX" HASN'T PAID CHILD SUPPORT, DO I STILL HAVE TO LET HIM SEE SEE SUSIE? OR HE WON'T LET ME VISIT BILLY, DO I STILL HAVE TO PAY CHILD SUPPORT?

A frequent question that all family law attorneys hear is, 'My husband/wife hasn't paid child support, can I just not let him/her see the children?' Of course, the corollary is, 'My husband/wife won't let me see the children, can I just stop paying child support?'

There is only one answer to this: a resounding NO!!!

Nothing will infuriate a judge quite as much as a parent using the children to accomplish another objective. Child support and child possession are two separate issues and MUST be kept entirely separate. In fact, the Texas Family Code provides that a judge cannot issue an order that provides that the payment of child support is conditioned upon access to the children.

So what can I do?

If your spouse is not paying child support or letting you see the children, then there are remedies available to you. First, and least contentious, is to work out an arrangement on your own. No legal fees are involved and you will develop more experience in working to raise the children together. If that doesn't work, then perhaps you can talk your ex-spouse into mediation. That can also be done without lawyers if you want. In North Texas, several organizations, along with many private attorneys, handle situations like this. Since any result is due to an agreement by the parties, then there is a better chance that the agreement will be followed voluntarily. Of course, if one party won't negotiate in good faith or fails to abide by the agreement, then you have no court order to enforce it. (Under certain circumstances, the agreement may be entered into the court file if there is an ongoing legal action. See your attorney for information on this).

Finally, you may need to get judicial intervention to resolve this. Frequently, once both parties have lawyers that can explain the legal situation to their clients, an agreement can be reached. If not, the party that wants to enforce the order for child support or possession may file a 'Motion to Enforce' with the court. After appropriate notice to the other party, a hearing can be held and a judge can then take action. If the judge finds that a previous order is enforceable then the judge can hold the party violating it in contempt of court. Contempt can result in a fine or jail sentence, either of which often miraculously produces obedience to the order. If the order is found not to be enforceable by contempt, the judge can 'clarify' the order to make it enforceable. In either case, you are on your way to satisfaction.

Please be aware, however, that sometimes you just "can't get blood out of a turnip." While the threat of jail time often produces the past due child support, frequently it does not and you may have to make a decision as to whether you are comfortable with your children's father or mother going to jail. Also, if there is no reasonable expectation of having the order followed, you need to decide whether you want to spend the money and assume the emotional cost of fighting this matter. Many people decide that it's not worth it.

If you have a question about this, please contact an attorney of your choosing for more information.

3. DO I HAVE 'GROUNDS FOR DIVORCE?'

Divorce

Several years ago, Texas adopted "no fault" divorces. A divorce may also be granted on 'fault' grounds.

If either or both parties claim that the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship, and there is no reasonable expectation of reconciliation then a divorce can be granted. This ground for divorce is referred to as 'insupportability'. This helps to lower the contentiousness of divorces, reduce the cost of obtaining a divorce, and provide a better atmosphere for the parties and, especially, any children.

Either party, however, can assert fault grounds for a divorce. Reasons to do this might be to obtain a larger share of the community estate or to obtain custody or visitation provisions. Fault grounds in Texas are cruelty, adultery, conviction of a felony, abandonment, living apart, and confinement in a mental hospital. There are specific provisions and limitations on each of these so consult with your attorney.

Annulment

A person may have a marriage annulled for several reasons (to some extent, it will be as if it never existed, but property acquired and children born during an annulled marriage receive the same treatment as if the marriage was dissolved by divorce). Of course, with an annulment, if you proved the grounds for the annulment, then you do not have issues of "fault".

Reasons for an annulment include situations where a party is under the age of 14 when married (or married under the age of 18 without parental consent); a party to a marriage was under the influence of alcohol or narcotics; impotency is alleged; fraud, duress, or force was involved in the marriage; a party was mentally incompetent; one party concealed the fact that he or she had been divorced within the last thirty days; or the parties were married within 72 hours of obtaining the marriage license. Again, the requirements are specific.

Void Marriages

A marriage is void (never existed at all) if the parties are related to each other (as provided by the statute) or if one of the parties was married to someone else at the time of the marriage.

Tort

In addition to 'fault' grounds for a divorce, if a spouse has engaged in abusive conduct towards the other spouse that has resulted in psychological or physical injuries there may be a tort claim against the offending spouse that could result in the injured spouse obtaining damages in addition to any split of the community property.

4. WHY CAN'T I GET ALIMONY?

For many years, Texas has refused to recognize alimony unless the spouses agreed to it. During the nineties, however, courts were allowed to order 'spousal maintenance' under two limited circumstances.

The first of these is if one party was convicted of a criminal offense that was an act of family violence within the last two years.

The second circumstance is when one spouse is in poor financial condition (as described by the Family Code) and the marriage has lasted longer than ten years.

If spousal maintenance is ordered, then there are specific limitations. It can only be for a maximum of three years and, if the court is ordering it for long enough to allow the recipient time to obtain a job or develop job skills, then for only as long as necessary to do so.

The support can only be for the lesser of $2,500 or 20 percent of the payor's average monthly gross income.

Again, there are other significant rules, restrictions, and limitations to spousal maintenance.

5. WE'VE LIVED TOGETHER FOR 7 YEARS, ARE WE "COMMON LAW MARRIED"?

A very common misconception is that "living together" for a certain length of time will result in a common law marriage (properly referred to as a "marriage without formalities". In reality there is no specific timetable. To have a common law marriage, the parties must (1) agree to be married, (2) after that agreement live together as husband and wife in this state, and (3) represent to others that they were married. Obviously, they could be married after just a few days or after several years. There is also a provision in Texas law for a couple to sign a Declaration of Informal Marriage.

There are two important things to note about informal marriages. The first is that they are "real" marriages and therefore it would be necessary to divorce (or obtain an annulment) to dissolve the marriage. All property and child related issues are present just as in a formal marriage. The second issue is the practical reason for informal marriages. Sometimes all of the requirements for a marriage may not have been met perfectly. For example, the couple may not have waited the appropriate time to get married after obtaining a marriage license, or some other technical flaw occurred. Instead of having them live, perhaps years, as an unmarried couple, the law provides that they were actually married in that they (1) agreed to be married, (2) lived together as husband and wife, and (3) held out that they were married.

6. WELL, WE DON'T HAVE TO TELL THEM ABOUT THAT , DO WE?

Perry Mason was a great legal show even if somewhat unrealistic in places. It would be totally unrealistic today. The ending was usually a suspenseful courtroom scene where someone on the witness stand or out in the gallery would suddenly break down and confess to the inequity of the week due to suddenly presented, and previously unknown, evidence. Good drama--bad policy.

The Texas Supreme Court calls that 'trial by ambush' and for years has been trying to eliminate, or at least reduce it, in this state. They feel that there would be fewer trials, and therefor less use of the overburdened court system, if all information came out prior to the trial. If BOTH parties know all there is to know about the other party and all relevant information, then presumably, there would be more settlements because it would be easier to forecast the end result. To do that , the concept of ?discovery? has been significantly strengthened.

"Discovery" is simply the process by which each party may learn about relevant information from the other party. There are several types of discovery.

The first one in almost any legal action is a "Request for Disclosure". This request from one party requires the other party to give information such as their legal theories and the factual basis of any claims, information about potential witnesses and experts, witness statements, and other specified information. There are virtually no proper objections to these requests and the responses are due, as in most forms of discovery, in 30 days.

Next, are three types of discovery designed to further open up the facts of the case. "Interrogatories" are questions that one party asks of the other that must be answered under oath--which means that untruthful answers can be impeached just as if the party said them at trial. "Requests for Production and Inspection" are designed to allow each party to see and copy the other party's documents and other evidence before trial. "Requests for Admissions" are statements put to a party that must be denied within 30 days. If the party does not deny the request then the statement is assumed to be admitted. If one party admits to all of the significant issues then the trial is essentially over before it starts.

The last major form of discovery is a "deposition". This allows one party to ask questions of the other party that must be answered under oath. Usually this is in person (so that answers can be followed up with additional questions, if necessary) but can be written. Again, since it is under oath, it is perjury not to tell the truth.

Although used mostly in custody cases, it is also possible to ask the court to order other discovery such as mental or physical examinations of a party or child.

So, as you can see, there is almost nothing that can be kept from the other side in a lawsuit, whether for divorce or other matters. If it is relevant to the action (in a divorce or custody suit almost everything is) then it must be disclosed if the other party asks about it. The penalties for not properly disclosing something can be severe. First, if you fail to disclose a fact such as the name of a potential witness, then you will likely not be allowed to use the witness or fact at trial. Beyond that, the court can make you pay the other party's attorney fees, limit your case, disallow you any further discovery, prohibit you from introducing certain matters into evidence, hold you in contempt of court, or even render a judgment for the other party. Obviously, it is best to be open to the court in order to preserve your rights at trial.

So, what can you do about this matter that you don't want discussed? First, realize that there are very few real secrets. Most questions that are asked are to get you to respond with information that the other party already knows or strongly suspects. Second, don't worry about an embarrassing disclosure. Typically, there is no one in the courtroom other than the parties, their lawyers and the court personnel. Believe me, it is extremely unlikely that you have circumstances that the judge hasn't heard before. What sounds titillating to you is probably boring to the judge. REMEMBER, YOUR CREDIBILITY IS THE MOST IMPORTANT WEAPON THAT YOU HAVE AT TRIAL. Don't risk throwing it away.

Most importantly, your lawyer is the first person who should know about these facts. Most facts are not as damaging as the client thinks that they are. If your lawyer is aware of all of the circumstances then he or she can develop your case in such a way that minimizes the damage or explains it in such a way as to make it less important. TELL YOUR LAWYER EVERYTHING and trust him or her to represent you. If you don't then you have likely decreased your chances of prevailing and possibly even torpedoed your own case. At that time, perhaps no lawyer can solve your problems.

7. WHY SHOULD I PAY ALL OF THIS CHILD SUPPORT, SHE JUST SPENDS IT ON HERSELF?

One of the easiest ways to get crosswise with a judge is to talk about the unfairness of child support going for the other parent. Child support is for the support of the child. You CANNOT trace the money. Just because the other parent bought a new suit immediately after receiving child support doesn't mean that the money is not supporting the child. I have never seen a situation where a parent's support paid all of the expenses of a child; even in divorces where one party was a professional paying support on six figure income. The child's needs for housing, food, clothing, transportation, education, recreation and other items are usually more than either parent realizes. If a parent pays themortgage, utilities, groceries, and other child related expenses out of his or her paycheck, does it really matter if he or she buys a suit after having the bank account refilled by the child support check? Certainly there are parents who put their own desires in front of their child's but those cases are rare. More often than not, the custodial parent makes the biggest financial sacrifice in raising the child.

Studies have shown that in the typical arrangement where mom has custody and dad pays child support, mom's standard of living goes down after the divorce and dad's goes up. Most judges are familiar with this and rule accordingly. To argue that the custodial parent is not spending the money wisely is usually not going to help your case.