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Family Law FAQs

At Higdon, Hardy & Zuflacht, L.L.P., our certified family law lawyers are committed to protecting you and your family. We will work tirelessly to make the process of your family dispute resolution as quick and painless as possible. To help keep you informed, our team of San Antonio family law lawyers has gathered a list of some of our most frequently asked questions. We hope this list will help to ease the burden of your family law matter. If you have further questions or you would like to discuss any of these subjects in more detail, please contact our San Antonio offices at (210) 349-9933 to speak with one of our knowledgeable attorneys

  1. What is required to get a divorce in Texas?
  2. Are there special requirements with a Texas Military Divorce?
  3. What is a marriage?
  4. What is a common-law marriage?
  5. What is an annulment?
  6. Does Texas recognize legal separations?
  7. Do I need a lawyer to file for divorce?
  8. How long does it take to get a divorce?
  9. Does everyone go to court when they get divorced?
  10. Who has to pay child support?
  11. How is child support calculated?
  12. What is included in the child support?
  13. How long does child support have to be paid?
  14. What can I do to enforce payment of child support?
  15. What if the non-custodial parent lives in another State?
  16. How are my property and assets affected during my divorce?
  17. What is the difference between closed and open adoption?
  18. What is a family care plan in relation to military custody issues?
  19. Why is Board Certification important?

What is required to get a divorce in Texas?

In order to file for divorce in Texas, one spouse must live in the state of Texas for at least six months, and reside in the county where the divorce is being filed for at least 90 days before submitting the divorce petition.

Texas is a no-fault divorce state, which means you will be granted a divorce, without having to site any specific reasons. The divorce can be based on the grounds that the marriage has become irreconcilable due to conflict between your personalities.

However, you and your lawyer can prepare a fault-based divorce case. After meeting with your San Antonio attorney. You must present evidence to prove fault which the court may take into consideration when determining an equitable division of property.

Divorce documents / requirements video

Are there special requirements with a Texas Military Divorce?

Compared to a typical civilian divorce, a Texas military divorce has several unique issues. There are specific state and federal laws and rules that apply.

Laws are set up to protect military members on active duty against being held in ‘default’ for failing to respond to a divorce action. This protects active military members from being divorced without knowing it.

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Texas court to have jurisdiction over the active military member.

Requirements for filing a military divorce include:

  • One spouse must reside in Texas
  • One spouse must be stationed in Texas

The federal government has enacted the Uniformed Services Former Spouses’ Protection Act that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse. This Act is combined with the normal Texas property division laws.

In Texas, both child support and spousal support awards may not exceed 60% of a military member’s pay and allowances.

The HHZ lawyers of San Antonio can help you with your divorce or family law situation.

What is a marriage?

The Federal Defense of Marriage Act defines marriage as “only a legal union between one man and one woman as husband and wife” Marriage is the legal union of a couple as spouses. The basic elements of a marriage are:

  • The parties are legally able to marry each other
  • There must be mutual consent of the parties
  • A marriage contract as required by law.

In Texas, couples are responsible for obtaining a valid marriage license from the state, and each individual must apply in person to obtain the license. There is a 72-hour waiting period from the time the license is issued until the ceremony can take place.

You can speak to one of our San Antonio family law attorneys for help in obtaining your marriage license.

What is a common-law marriage?

Texas is one of the few states in the country that recognizes common law marriage. In Texas, common law marriage is defined as an ‘informal marriage’.

Under section 2.401 of the Texas Family Code, an informal marriage can be established either by registering with the county without having a ceremony, or by meeting 3 requirements:

  1. The man and woman agree to be married
  2. The man and woman cohabitate in Texas
  3. The man and woman hold out to other parties that they are married

What is an annulment?

Annulment is a legal process in which a court determines the parties were never legally married to begin with; thus, the marriage is null and void. Annulments are rarely granted; however, grounds for doing so include:

  • If one party is incapable of consent
  • Due to mental incapacity or intoxication
  • Deception about some aspect of the marriage
  • Failure to consummate the marriage

Does Texas recognize legal separations?

Texas does not recognize legal separations, but the State does allow temporary orders to be filed at the time the divorce is filed. Similar to a legal separation, temporary orders define the rights and responsibilities of each party for the duration of the divorce proceedings.

Listen to an HHZ San Antonio Divorce Attorney for more information about temporary orders.

Do I need a lawyer to file for divorce?

You are not required to have a divorce lawyer to file for divorce. However, it is always advisable to hire a San Antonio divorce lawyer if there are contested issues involving property, finances or children. Even with an uncontested divorce, disagreements often arise when dealing with issues like child custody and property divisions. Having one of our San Antonio divorce lawyers on your side is the best way to protect your interests and make sure you are informed about the consequences of every decision. A San Antonio divorce attorney understands the unique laws and how they are applied in Texas.

How long does it take to get a divorce?

Texas law requires that a couple wait 60 days after the date the divorce petition is filed to finalize the divorce. The length of time it takes to resolve a divorce case depends on many factors.

When a couple is in agreement on all terms of the divorce, the final decree of divorce can be prepared and signed by the parties during the 60 day period and can be entered by the court on the 61st day. The divorce is final once the judge declares it in court and signs the decree of divorce.

When the parties are not in agreement, the average length of time to finalize a contested divorce is about 6 months to one year. Depending on the complexity of the issues, the process can be even longer.

To help make it easier, contact a San Antonio attorney

Does everyone go to court when they get divorced?

No, you are not required to go to court to get a divorce. In fact, most divorce cases are settled before reaching that point. Whether or not you go to court really depends on the details of your case. For example, if you have a situation where you and your spouse have an agreement, or come to an agreement through negotiations, the agreement is placed in written document by your San Antonio divorce attorneys. Once the document is submitted, you don’t have to go to court. However, if you and your spouse can’t agree, you will need to go to court to ask a judge to make the decisions.

Who has to pay child support?

The purpose of child support is to maintain the financial welfare of children. Child support is paid by the non-custodial parent to the parent who is awarded legal custody of the children.

Listen to an HHZ San Antonio family law attorney talk more about child custody in San Antonio and child support.

How is child support calculated?

The Texas Family Code contains guidelines for the calculation of child support. In 2007, the maximum net income subject to child support considerations was changed from $6,000 a month to $7,500. The guidelines apply to situations in which the non-custodial parent’s monthly net income is equal to or less than $7,500. The court applies the following schedule:

  • 1 child -> 20% of net income
  • 2 children -> 25% of net income
  • 3 children -> 30% of net income
  • 4 children -> 35% of net income
  • 5 children -> 40% of net income
  • 6 or more children -> No less than 40%

If the non-custodial parent’s net income is greater than $7,500.00 per month, the court will apply the percentages listed above to the first $7,500.00. The court may order additional amounts of child support if there is a proven need for the child’s wellbeing.

If the non-custodial parent has children from another relationship or marriage, the amount of child support may be reduced.

What is included in the child support?

The non-custodial parent’s gross income includes wages, commissions, overtime pay, tips, bonuses, interest, dividends, rental income, royalty income, trust income, retirement income, disability income, etc.

Net income is calculated by subtracting five items from the parent’s gross income:

  1. Social security taxes
  2. Federal income tax
  3. State income tax – if living in a state that collects state income tax
  4. Union dues
  5. Health insurance premiums for the child/children

Included in the child support orders, the non-custodial parent is required to maintain health insurance for the children. The children must be included on their employment health insurance policy; or if insurance is not available through employment, but is available through the custodial parent’s employment, the non-custodial parent must pay the premium costs. When insurance is not available through either parent’s employment, the non-custodial parent will be ordered to provide insurance coverage to the extent available and affordable.

How long does child support have to be paid?

Child support is due until the child becomes 18. If the child has not graduated from high school but is fully enrolled, the child support continues until high school graduation. When a child has a physical or mental disability, support can be continued indefinitely.

A decree of divorce can include any other agreements made by both parents. For example, one parent promises to pay the child’s college tuition. These types of agreements are not enforceable by contempt, but can be enforced as a contract by the parent or by the child, if the child is over the age of 18.

What can I do to enforce payment of child support?

The Child Support Division of the Attorney General’s Office is Texas’ official child support enforcement agency.

When a non-custodial parent fails to pay child support, they are subject to enforcement measures according to Texas child support laws which will collect regular and past-due payments.

  • The court can require wage withholding from the non-custodial parent’s paycheck.
  • Liens can be placed on their property or other assets.
  • Issued licenses can be suspended.
  • A lawsuit asking the court to enforce its order against the non-custodial parent can be filed.
  • The judge can sentence the non-custodial parent to jail and enter a judgment for past due child support.

What if the non-custodial parent lives in another State?

There are laws which require that states cooperate with each other on child support enforcement. The non-custodial parent is legally required to make regular child support payments, no matter where they live. Therefore, the state child support enforcement rules will apply.

How are my property and assets affected during my divorce?

Texas is a “community property” state, meaning any property or assets acquired during marriage are shared property between the couple. The couple divides these shared assets equally during the divorce settlement. Any property that you or your spouse owned individually before the marriage is “separate property” and will not be distributed during the divorce. One exception to this rule is inheritance. If you individually inherit property or assets during your marriage, the law considers this inheritance “separate” as well.

What is the difference between closed and open adoption?

A closed adoption means that the birthparents have no contact with the adoptive parents or the child once the adoption has occurred. Open adoptions, which are becoming more common, allow the birthparents to remain in contact with the adoptive parents and child, and vice versa. The degree to which an adoption is “open” varies between cases. Some open adoptions allow for regular visits, while others allow only for periodic phone calls.

What is a family care plan in relation to military custody issues?

A family care plan is a way for military parents to ensure that, in the event of deployment, their children receive proper care from a reliable relative or friend. Some members of the military—including all single parents in the military with children under the age of 18, and a married or unmarried couple who share custody of a child under the age of 18—must have family care plans. Family care plans provide details of the type of care the military member wants for their child.

Why is Board Certification important?

Board Certification is a process attorneys take initiative to pursue. By applying, the attorneys are subject to testing of their knowledge and skill, review of their past work and success, and scrutiny about whether or not they meet the requirements for receiving Board Certification. In taking the steps to apply, attorneys prove their dedication to their practice and their ambition to achieve specialization status in order to better serve their clients.

One of the requirements for Board Certification is that lawyers must regularly attend educational seminars and classes that keep them sharp about the changes in their field and up-to-date on new trends in their area of practice. This in itself is important, because if your attorney is Board Certified, you know they are constantly learning ways to be a better lawyer and improve their practice.

Overall, Board Certification is important because when you are seeking an attorney, you want to know you are getting the best service possible. Through the dedication of achieving Board Certification, the partners at Higdon, Hardy & Zuflacht, L.L.P. prove to clients that they will get the most devoted and driven attorneys working on their case.

Higdon, Hardy & Zuflacht, L.L.P. 12000 Huebner Rd #200 San Antonio, TX 78230 Telephone: (210) 349-9933 Fax: (210) 349-9988
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