Frequently Asked Questions About Family Law

What is Family Law?

Family law generally focuses on transitions affecting the structure of a family, such as divorce, spousal and child support, physical custody and visitation, and property division.

What happens in a divorce?

In Texas, divorce is the only way to legally end a marriage while both spouses are still alive. In a divorce proceeding, the court decides who will have custody of the children, who will pay child support, and how the debts/assets will be divided between the two spouses. These decisions, however, can also be negotiated and agreed to by the parties and their attorneys.

Who can file for divorce?

In Texas, you can file for divorce if either you or your spouse (1) has lived in Texas for at least the last 6 months and (2) has lived in the county where you intend to file for divorce for at least the last 90 days. Because there are a few limited exceptions to this rule, it is important to talk with an attorney if you are thinking about filing for divorce.

How long will it take to get divorced?

In Texas, the court cannot grant a divorce sooner than 60 days after the suit was first filed. The length of time to complete a divorce depends, however, on whether both parties are reasonable, are looking at issues objectively and unemotionally, and are settlement minded.

Why do I need a lawyer to help me with my divorce?

Divorce proceedings are oftentimes very emotional and depending on the size of the marital estate, can be complex. Whether you have children or not, it is important to understand the law and ensure that your rights and assets are protected during a divorce.

What property is divided during divorce?

Texas is a “community property” state, which means that all property you and/or your spouse have acquired during the marriage, except for separate property, is divisible. Separate property is that property which a party acquired prior to marriage, or during marriage by gift, inheritance or devise. It is important to talk to a lawyer to make sure you are “characterizing” the property properly before dividing it

How is debt divided during divorce?

Debt is divided in much the same way as property is divided. The debt will be characterized as community, separate (of a party), or a combination. As with property, if the parties can work out a fair and equitable division, that is typically the most cost-effective way to handle debts. 

What about pets in a divorce?

Pets can be characterized as either separate or community property, determined by inception of title (ie., the time and manner in which ownership occurred). While Texas courts will not order pet custody or a pet visitation schedule of a community pet, parties can agree to these issues and have them included in the Final Decree of Divorce. If included in the final decree, the agreement will have the full force and effect, just like all other parts of the decree.

Child Custody & Child Support

What is a Suit Affecting the Parent-Child Relationship (SAPCR) case?

A SAPCR asks the court to make a determination on one or more of the following issues:

• Child Custody
• Visitation Rights
• Child Support
• Medical/Dental Support for the Child(ren).

However, a judge may make additional orders if they are in the child(ren)’s best interest.

Who can file a SAPCR?

In Texas, you may file a SAPCR case if either (1) the child has lived in Texas since birth or for at least the last 6 months or (2) Texas was/is the child’s “home state” and the child has been gone for less than 6 months. Because there are a few limited exceptions to this rule, it is important to talk with an attorney if you are thinking about filing a SAPCR.

“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent.  

Why do I need a lawyer to help me with my SAPCR case?

SAPCR cases are often very emotional and complex, the outcome of which will impact you and your relationship with your child for a very significant portion of time and possibly for the rest of your life. Whether your SAPCR case is contested or not, it is important to ensure your rights and the best interest of your child are being protected. That’s our goal at Brophy & Devaney.

How long does a SAPCR case take?

While there is no mandatory waiting period for a SACPR (like there is in a divorce case), SAPCR cases may also take a significant amount of time to finalize because of their complexity and the volume of family law cases already in court. However, the time period is lessened if the parents are in agreement on the issues.

How much child support will the court order?

Texas has guidelines that govern the maximum amount of child support a court can order. These guidelines consider three factors: (1) the monthly net resources of the obligor; (2) the number of children before the court; and (3) the number of other children for whom the obligor has a duty of support. However, parties may agree to an amount that is lower or higher than these amounts if they wish, and request the court enforce that agreement.

Spousal Maintenance

Will the court order spousal maintenance in my divorce case?

No two divorce cases are the same and spousal maintenance is decided on a case-by-case basis. As not all spouses are entitled to spousal support, it is important to seek legal assistance to help ensure your rights are protected and you receive a fair and equitable spousal maintenance order, whether you are the party requesting spousal support or paying the support.

Modifications

Who can file a modification case?

In Texas, either parent can file a modification case. The Texas Attorney General Child Support Division may also file a modification case.

Where should I file my modification case?

Generally, in Texas, you must file a modification case in the Texas county where the current order was made. However, if the child has lived in another state for the last 6 months or the current order was issued in a different state, you may need to file elsewhere. In these situations, it is a good idea to consult a lawyer before filing your modification case.

What can I change with a modification order?

A party can ask the court to modify a custody, visitation, child support, medical/dental support or spousal maintenance order. Before filing a modification case, it is important to consult with a lawyer to determine the likely success of your case.

Enforcement Actions

Can I prevent a parent who is not paying child support or spousal maintenance from seeing our child(ren)?

No. Although it seems like the two go hand-in-hand, child support and visitation rights/child custody are considered separate orders in the Final Decree or SAPCR order. The violation of one does not excuse the performance of another. If the other parent is failing to make child support or spousal maintenance payments, the appropriate action is to speak with an attorney about your best options.

Can I stop paying child support or spousal maintenance if the other parent is preventing me from seeing our child(ren)?

No. As with nonpayment of child support, the violation of one does not excuse the performance of another. If the other parent is preventing you from seeing your child(ren) as ordered by the court, the appropriate action is to speak with an attorney about your best options.