Frequently Asked Questions About Family Law

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Divorce

Texas law mandates a 60-day waiting period from the time the case is filed until a judge can grant the divorce. Depending on the complexity of the issues and the intensity of the conflict between the parties, it could take as little as 61 days, or as much as several years. It is typical for a case to last 6 months to a year, even when the parties think they will agree on most issues.

If you’ve decided that you are ready to begin the process, your attorney will start by filing an “Original Petition,” which is a document that tells the Court who you are, who your spouse and children are, and generally what you are asking the Court to do. The Petition will need to be “served” on your spouse, at which point the case is considered “live.”

Divorce is a stressful process for many reasons, not the least of which is the financial burden. Even relatively uncomplicated cases can cost several thousand dollars to resolve.

High-conflict cases can reach into the tens and even hundreds of thousands of dollars (in the most extreme situations). The old saying is still true — you get what you pay for.

Some of the most expensive divorces are cases in which cost-cutting practices result in a huge mess for another attorney to clean up. We believe that doing it right the first time leads to good results, happy clients, and lower overall cost.

One of the ways to obtain an uncontested divorce is for both you and your spouse to agree about all the issues in your case and come to an agreement. Please consult with a family law attorney for additional avenues for your divorce to be uncontested.

Alimony is financial support one receives from their spouse following a divorce. One spouse pays money to the other by court order or by agreement.

Community Property includes the holdings and resources owned in common by spouses during marriage in the event of a Divorce or death of one of the parties.

There is no such thing as a “legal separation” under Texas law. Either you remain legally married or you begin the divorce process.

No. If you receive any mail addressed solely to your spouse, it should be forwarded to him or her by you or through your attorney.

Wiretapping is a felony and can be subject to criminal prosecution. However, it is lawful to tape record a conversation as long as one party to the conversation consents to the recording. Therefore, you may record a conversation between yourself and another person.

You may NOT secretly install a recording device to intercept conversations between others. To do so is a felony. The whole issue of recording telephone conversation is very sensitive. You should carefully discuss it with your attorney.

Whether you want a divorce or not, the divorce can go forward when either spouse seeks to obtain a divorce. Either person has the ability to make the process take longer, be more expensive, be more difficult, or make it simple – it’s either person’s choice. If one spouse wants a divorce, then that individual can file for a divorce.

Not until the divorce is final.

Adultery is a ground for the granting of a divorce based upon fault. Your legal status as a married person does not change until a divorce is granted. Although some judges are lenient regarding dating while a divorce is pending, you should be cautious about taking the risk. The fact that your spouse may be dating should not be an excuse or justification for your conduct. You need to wear the “white hat.”

LGBT Family Law

Decisions regarding parenting time, child custody or other issues related to children are based upon what is in the best interests of the child. Speak with a family law attorney who understands child custody about your specific situation.

Since same-sex couples were only afforded the right to marry under Texas law in recent years, many couples are marrying later in life. Each spouce has acquired his or her own assets and debts. Prenuptial agreements can help keep certain property and debts separate or define what is not subject to division, if a divorce should occur.

Speak with a family law attorney about the specific details of your case. Parentage of a child may need to be established by a court order or may be presumed based on the facts. This may also affect your ability to get a divorce.

Yes. Same-sex couples in Texas now can enter into an informal marriage, also known as a common-law marriage. Texas allows parties in an informal marriage to hold, as their legal marriage date, the earliest date at which they satisfied all the requirements of an informal marriage.

Under the Texas Family Code, an informal or “common law” marriage may be proved by evidence that (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabitated together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married.

All three requirements must occur at the same time, although there is no minimum duration. Additionally, both members of a couple must be at least 18 years old, must not be related to each other by consanguinity (as defined in Texas Family Code 6.201), and must be legally single. If either party is married to someone else, a new informal marriage does not start until the prior marriage is dissolved, regardless of the couple’s intent and behaviour.

Yes. This is an important question that impacts determinations of separate and community property and benefits, such as pensions and Social Security. According to the Texas Department of State Health Services, “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.

No, all marriages are treated in the same way in Texas. Whether you are heterosexual, homosexual, or any of the LGBTQ+ community, a divorce or custody action follows the same process for you as it would for any heterosexual couple. Love is love and divorce is divorce under the law in Texas.

Child Custody

Every case is different, and the custody situation is often the most challenging issue to negotiate. Texas law presumes that the children are best served by having as much contact as possible with both parents. In the vast majority of cases, some kind of shared custody will result. A common misconception is that a spouse who is at fault for breaking up the marriage should be punished by having less time with the kids. The breakdown of the parents’ relationship with each other does not, by itself, indicate problems between parents and children.

In most situations, one parent will have to pay child support to the other. The amount of support is normally based on the statutory guidelines in the Texas Family Code. The Court has a mandate to see that the child support order serves the child’s best interests. Occasionally, parents reach a true 50-50 custody arrangement and agree that neither parent will pay monthly support or pay a reduced amount of support.

A legal guardian is an adult with the legal authority to care for someone else, called their ward. Legal guardians are responsible for the health and well-being of their ward. This encompasses everything that impacts the person’s life, including: doctor’s visits, school, financial responsibility, transportation, housing, and supplying groceries. People who require guardianship often fall into 3 different categories:

  • Incapacitated Seniors
  • Developmentally Disabled Adults
  • Minor Children

A SAPCR (Suit Affecting the Parent-Child Relationship) case is filed to make a custody, visitation, child support, and medical support order for your child.

Child custody jurisdiction issues in Texas, and any other state for that matter, are governed by the body of law commonly referred to as the Uniform Child Custody Jurisdiction Enforcement Act. Virtually all states in the U.S. have adopted a version of the UCCJEA. Some states’ version of the UCCJEA is different than that adopted by Texas. Therefore, conflicts sometime arise between Texas law and the law of another state when both Texas and the other state try to claim jurisdiction over a case.

Having a 50/50 possession schedule does not automatically mean you will not pay child support. Texas has a guideline amount of support that is established in each case regardless of time spent in possession of the child(ren) or the income of the other parent.

The initial guideline amount of child support is based on each individual parent’s income. It is calculated as a percentage of the parent’s income, for example- for one child, it’s 20 percent of net earnings; for two children, it’s 25 percent; for three children, it’s 30 percent, and so on. Fundamentally, the court will look to the needs of the children and make sure those needs are able to be met in each household.

The term “jurisdiction” refers to the power of a court to hear a case and to issue orders to the parties involved. The power of the court to listen a particular type of case, such as a child custody case, is called “subject matter jurisdiction.” The power of a court to order a particular person to do something is called “personal jurisdiction.” 

General Family Law Questions

Discovery is a formal or informal investigation process. The parties will exchange information including, but not limited to: documents, answers to written questions, admission of certain facts of the case, and other information. The discovery can also include a deposition), in which one attorney formally asks questions of the other party. You will be with your attorney while the other party’s attorney asks questions and your answers are electronically recorded by an independent third party.  

The term “jurisdiction” refers to the power of a court to hear a case and to issue orders to the parties involved. The power of the court to listen a particular type of case, such as a child custody case, is called “subject matter jurisdiction.” The power of a court to order a particular person to do something is called “personal jurisdiction.”

A lawsuit is a formal process of filing a complaint with the appropriate court. The rules for a lawsuit will differ from state to state and even county to county but overall, there are various stages. Some of those stages could be Discovery, Settlement, Trial, and Post-Trial Work.

Some may mistakenly use ‘litigation’ and ‘lawsuit’ interchangeably. They are, however, different. Litigation is an all-encompassing term that includes actions taken before, during, and even after a lawsuit that is defending someone’s legal rights. As soon as you decide to defend your legal rights and hire an attorney, litigation begins.

After the trial is over and the verdict of the lawsuit has been determined, there could potentially be more left in the process of litigation. While Capps Law Firm, PLLC does not take on Appellate cases, we refer out to trusted attorneys. Read more about appeals here.

Modification is a written change made to an agreement. A modification may introduce or cancel specifications or terms of an existing agreement without effecting the purpose of it. An enforcement or modification may be necessary if circumstances have changed. In family law, this may include an illness, home relocation, job loss, or a situation where a parent fails to abide by an agreement or order.

Deposition is part of the litigation process that happens before the trial. It is part of the Discovery process where both lawyers collect information and evidence related to the lawsuit. The deposition is a formal interview set up by one lawyer to gather information from someone involved or related to the lawsuit, often a defendant, plaintiff, witness to an event, or an expert in a topic related to the lawsuit.

No, except in very limited circumstances relating to personal business records. Generally, testimony must be given in person at the time of the trial, or by pre-trial deposition. This gives each side the opportunity to examine and cross-examine the witness. An affidavit cannot be cross-examined.

There is no requirement that both spouses hire an attorney. But an attorney can represent only one party, meaning that the attorney cannot give legal advice to the other side.

Capps Law Firm, PLLC, practices Family Law, serving clients in Austin, Round Rock, Cedar Park, West Lake Hills and throughout Texas.

Our Office:
7718 Wood Hollow Dr #205, Austin, TX 78731

Phone (512) 338-9800