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What Are The Top Misconceptions That People Have About Divorce?

Your Spouse Can Prevent The Divorce

No one can stop you from getting a divorce if you want one. Texas is a “no fault” divorce state. “No fault” means that you do not have to prove fault against your spouse to get a divorce.

You Can Get Remarried Immediately After A Divorce

There is a mandatory thirty day waiting period after a divorce is granted before the parties may marry a new person. A party may make a special request to waive the waiting period. The court may grant your request for good cause.

You Must File A Divorce Where You Were Married

You must file a divorce in the county in which you reside. You cannot file a divorce unless you have been living in the state of Texas for six months and you have been living in the county for ninety days before the filing of a divorce.

Divorces Are Always Ugly

Divorces do not have to be ugly. Many people avoid divorce due to fear and co-dependency. You can get through the process with minimal damage to yourself and the other party. You can change your circumstances and get out of an unhealthy relationship but you have to take action. What you need is a strategy on how to do that and this can be learned from an experienced family law attorney. You do not have to put the children in the middle of your issues with your spouse. A final resolution in your divorce can be obtained faster and easier than you may imagine. You just need an experienced third party to help you. Even if you have issues with the other party that you think are not able to be solved, a solution can be found. You do not have to delay in getting a divorce. It is possible to finalize all of the terms of a divorce within about thirty to sixty days after the case is filed. This happens in many cases, however a divorce cannot be granted until the 61st day after a case is filed. An experience family law attorney can help you with this by understanding your circumstances and goals and developing a strategy to prepare and finalize the case. An experienced attorney can help his client negotiate a final and binding agreement with the other party through an agreed divorce, settlement conference, mediation and other means and thus avoid costly fees and expenses.

I Can Do The Paperwork Myself

A divorce requires a process from filing the correct documents to having the other party served in person or by other legal means to scheduling a court hearing to putting on appropriate testimony before the Judge. A court hearing is required in a divorce.

I Need To Move Out Before I File For A Divorce

You do not have to move out before you file for a divorce. You should have your paycheck deposited in a bank account in your name only. You probably should not pay the other party’s house payments and monthly living expenses after you are separated. If you do, plan this with your attorney before you move to another residence.

Notarized Written Agreements Are Enforceable

A notarized or written agreement between the parties regarding child support, visitation or the division of property is not enforceable in a divorce. All agreements need to be made after the divorce is filed and must be made in the correct manner to be enforceable and binding.

Income Earned From Your Work Is Separate Property

All income, retirements and pensions earned during marriage by either party is community property and belongs to the community estate. All property possessed by either party at the time of divorce is presumed to be community property and subject to equal division of the parties. Putting your name on a car, house or other property does not make it just yours in Texas. It is the burden of the party claiming that something is separate property to prove, by clear and convincing evidence, that the property is actually separate property. Separate property is property that a party had prior to marriage, was a gift during marriage, or was received by a party through inheritance.

You Can’t Keep A Spouse From Coming Back Into A Marital Property House

Spouses can be kept from coming back into the marital home. This can be done by requesting a show cause hearing immediately after the filing of a case and providing the correct paperwork to get the request granted by the court.

Overtime Is Not Included In Setting Child Support

Overtime is considered in determining child support. Child support is based on current income.

The court uses child support guidelines in the Texas Family Code to establish child support. Child support is set as a percentage of the obligor’s monthly net income a month. The percentage of income to be paid depends on the number of children and how many other children the obligor is obligated to pay child support to.

I Can Quit My Job Or Take A Lesser Paying Job To Lower My Child Support

The reason for changing or losing a job is not overlooked in a divorce when it comes to setting child support. In many cases, using the prior year’s tax return will be what child support is based on. The court does not usually accept reasons for having lower income if you quit your job, decided to become a student or changed jobs for a job with lower pay when your work experience allows you to make more income

A Person Cannot Get Retroactive Child Support

Retroactive child support is able to be obtained in a divorce. Factors that affect the amount of child support include the separation date of the parties. Separation day is the date when the parties stop living together. Factors that are considered include how much money the party owing child support has helped the other party financially since separation.

My Business Is Not Subject To Division In A Divorce

A business, corporation, partnership or association is considered marital property and subject to division as community property. A business started during the marriage is community property and subject to division, even if the other spouse contributed nothing.

Wedding Rings Are Not Marital Property

Jewelry is generally considered a gift from one spouse to the other. And wedding rings are no different and are considered gifts. Gifts are not subject to division.

Parents Can Give Up Their Legal Rights To Children

The court will not do this unless you have a step-parent eligible to adopt the child or you terminate the parent’s rights under very narrow and restrictive circumstances. It is possible to restrict a parent’s duties and obligations and to not allow them any visitation or pay child support.

The Divorce Order Can Change The Names On Car Loans

A divorce decree changes ownership of the vehicle but it does not take one of the parties’ names off of the loan. There are options to this that can protect the party that wants their name off the loan. The same thing applies to mortgages on houses.

You Cannot Make The Other Party Accountable For Money That They Withdrew From A Bank Account

A party can be held responsible for withdrawing money from a bank account that was done without the permission of the other party. Money in bank accounts from money earned during the marriage is community property and subject to division.

People Can Avoid Drug Testing

Many people think they can avoid drug testing for alcohol, illegal drugs or using non-prescribed medications. People think they can avoid testing but the testing company we use has a method of being able to detect if the test is trying to avoid or mask the results and that is deemed to be a positive finding by the courts. Drug tests are also used to determine if the other party is using the medications prescribed by a physician for either party. A positive finding can be used against the other party in a custody case. An experienced family law attorney knows how and when to get drug testing for drug use to win your custody case. The test results are used to get primary custody, restricted visitation, to protect you and the children and get to a final resolution of your divorce as soon as possible.

Domestic Violence Cases That Are Dropped Or Dismissed Cannot Be Used Against You

The fact that one party may have dropped domestic violence charges does mean that those acts of domestic violence cannot be used against them in a divorce or custody case. A family law Judge can consider past acts of domestic violence and police reports even if no charges were files or if the charges were dropped.

The Party That Has Visitation Must Pick Up And Drop Off The Children Themselves

The party allowed visitation does not have to pick up and drop off the children. The court allows any competent adult to do that. There are some restrictions that can be added in certain circumstances.

The Party Getting Visitation Has To Be With The Children During Their Entire Visitation Period

The party getting visitation does not have to be with the children during the entire visitation period. A first right of refusal regarding babysitting can be obtained in many cases for an extended number of hours of absence by a parent during visitation.

You Cannot Speak To The Child During The Other Party’s Visitation

Most people want to speak to the child when the child is with the other party. There is no provision for that in the family code but there a number of options available for this to occur on certain days and at a certain time. Facetime, cell phone and other electronic means of communication with the party not in possession can be obtained in a divorce

You Can Change The Visitation Without A Court Order

You cannot change a court order unless there is a formal modification of that order. You are able to agree with the other party on making changes after the final divorce as the two may agree but it is not enforceable in court. You need to have the new agreement made into a new court order, a modified order, to make it enforceable. There are times when you will want to trade weekends, plan a summer vacation, restrict visitation or protect the child after the divorce is granted. A modified court order is the next step.

Most People Do Not Know What Evidence Is Necessary To Force A Party To Honor Court Ordered Visitation

The party that is not getting visitation has so show sufficient proof that they attempted visitation on the day, time and place that is designated in the court order. There are different forms of evidence that can be provided. Evidence in the form of your testimony that the other party said they were not going have the children ready for visitation is not enough to prevail in a Motion to Enforce for Contempt.

You Can Get Whatever Evidence You Want To In A Court Hearing

The court will deny your evidence whether it is your testimony or documents if it is not presented properly to the court. Parties that represent themselves are held to the same level as attorneys in knowing the Texas Rules of Evidence, the Texas Family Code, the Texas Rules of Civil Procedure and the local rules to be able to get evidence accepted by the Judge.

A Child Age 12 Or Older Can Choose Which Parent They Want To Live With

Some people think that a child 12 or over can decide who they want to live with. The truth is children do not get to decide who they live with in Texas. At age 12 a child can be interviewed by the Judge and the Judge will make the decision which is usually after all evidence is presented in a contested divorce. At age 18 a child becomes an adult and can choose who they want to live with. Child support stops when a child turns 18 and graduates from high school.

A Child Does Not Get To Decide What Sort Of Visitation They Have With A Parent

The parents must follow the court ordered visitation regarding visitation. The child does not make the decision. A modification of your order is needed if a child does not want to follow the court ordered visitation. A contested hearing is required and sufficient evidence must be provided to prove that the visitation is either physically or emotionally harmful to the child.

Adultery Is A Factor In Who Gets Primary Custody Of A Child

Most people believe that they can avoid the consequences of adultery when they start a relationship with another party after the separation but before they are divorced. Most people assume that adultery is an issue that will affect child custody. It usually does not affect who gets custody. In reality, adultery is considered a fault in a fault based divorce and it is utilized most often in getting an unequal distribution of the property. A spouse having an affair is one of the most emotionally charged issues in a divorce but the courts do not use that issue to determine if one parent should get primary custody of a child.

Retirement Plans Are Separate Property And Cannot Be Divided In A Divorce

Retirement plan proceeds earned during the marriage are subject to division. Any portion earned prior to the marriage is separate property and it is not subject to division between the parties.

People Get Confused On The Term Joint Custody

People often describe what they want as joint custody. They usually use those words to describe some type of equal visitation schedule which includes no child support. This is not usually granted by a judge. The courts do not like children to be separated and they want the children to live primarily with one party. The court does this because it is widely accepted that it is best to do that particularly when the children are in school or will soon be in school. The law states that the Judge has to approve of all terms regarding the children. There are options available to get this kind of schedule and having no child support without having to get the court’s approval.

A Parent That Abandons The Family They Lose All Rights To The Children

When the other parent abandons the children that parent still has parental rights. Those parental rights may be very restricted or limited.

A Parent Does Not Have To Give Visitation If The Other Party Does Not Pay Child Support

When a party does not pay their court ordered child support that party still has their full visitation rights. Child support and visitation are not dependent upon one another. A motion to enforce payment of the child support which also allows you to collect the child support that was not paid. The penalty for nonpayment is going to jail for up to six months and the other party must pay your attorney fees and costs.

An Inheritance Can Be Divided In A Divorce

If one party gets an inheritance during the marriage the other party is not entitled to the inheritance so long as you can trace the inheritance. Keeping it in an account in your individual name is the safest way to do this, but if you can trace the deposit into a joint account, you may be able to have the inheritance classified as separate property. It is important to keep your inheritance in a separate account in your name. Any income from that inheritance is community property and subject to division in a divorce. Do not put any of your earning from your job into that account. Gifts from third parties and inheritances are the separate property of the recipient and are not subject to division.

The State Of Texas Does Not Allow Spousal Support

Texas uses the term spousal support and spousal maintenance. Texas is not a good state to try to get spousal support. There are a number of restrictions on being able to qualify. The main issues involved in getting spousal support is the length of the marriage, domestic violence, the assets of the marriage and the ability of the party to meet their minimum financial needs. In some cases it is awarded for a brief period of time to help get the party back on their feet. In other cases, it is awarded for a longer period of time depending on the length of the marriage. Spousal support is not awarded to the other party to keep them in the same lifestyle they have grown accustomed to in the marriage. Some states do that. If you do qualify, the amount of the monthly spousal support can be up to twenty percent of the gross monthly income of the other party. Currently spousal support can be awarded as follows: between __________ years of marriage a party can get_____years of spousal support. Spousal support is enforceable by contempt of court with possible jail time.

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