Texas Divorce Legal Questions

There may not be grounds for an annulment in your situation.  Infidelity is not a ground for annulment.  You will instead need to file a divorce.  You will need to draft a divorce decree or correctly complete a form divorce decree and then check with the court to see when they will allow you to appear to finalize your divorce with a brief hearing.... Read More

The good news is that the marriage is not over until the judge signs a final decree of divorce. So you will make it to ten years.  There's a minimum waiting period after filing a divorce of sixty days after the filing date. Plus you are going to be entitled to your share of the property whether or not you have been married ten years.  If you are asking about military retirement benefits you are entitled to a share after even a short marriage. The ten years gets you the advantage of being paid your portion of husband's retirement directly from DFAS. The ten year mark is also relevant in eligibility for spousal maintenance after the divorce. I recommend you check with the district clerk in your county to see if a divorce has been filed. Yes he needs to have you served or ask you to sign a waiver, but people are sneaky sometimes.  ... Read More

You will need to file for divorce and request temporary spousal support and post-divorce spousal maintenance.  If your wife has income then the court may order her to pay you monthly support. If you are disabled,  the court may order your wife to pay support indefinitely.  If you own assets, you are also entitled to a share of the property and debts.   ... Read More

In Texas, all property obtained during the marriage is presumed to be community property. As community property, it is subject to a just and right division. It is likely that a court would award you the camper and boat; however, all the property would be considered and divided in the divorce, including all the property in your wife's possession. Also, after the divorce is filed, you could negotiate the property division without having the court decide. If you can't come to an agreement, the court will make the decisions.... Read More

The first paragraph of the possession order says that the parents can have possession of the child[ren] at all times that they mutually agree.   Accordingly, the parents can follow whatever possession schedule they want.   That said, the Court will require you to have some sort of "standard" possession schedule that you will follow in the event the two of you cannot agree.  Or, you could type of your agreed schedule and ask the judge to approve that.  Regardless, the judge will have to conclude that whatever is in the order is in the best interest of the child[ren], unless the schedule is one agreed to in mediation.... Read More

The term "joint will" has legal meaning and is essentially a contractual Will. Ultimately, a contract with a spouse regarding child support or possession and access would not be binding. A court will always have the final word because judges are bound to issue a final order in the best interest of the children in a suit affecting parent-child relationships (custody suit).  However, you and your husband can come to an agreement regarding your children during a divorce and seek Court approval to make it a final/court order.  A court will normally approve your agreement unless the Court decides the agreement would not be in the children's best interest. In sum, you cannot contractually Will your child and have it be binding on a Court.    For example, I draft a Will and name my sister as guardian of my children if something should happen to me. I die five years from now and my sister is a homeless drug addict and I never changed my Will. My perfect brother files for custody of my children. My drug addict sister is not going to win custody against my brother in a custody battle despite what my Will states. Likewise, if the father of my children is still living, then neither of them would win against the father in the custody battle, Unless the father is also unfit, a parent will always take legal precedent.  As to joint Wills, these are not used very often anymore as they have many potential problems. There are legal alternatives to contractual Will. For instance, an irrevocable trust. I practice in areas of family law, real property law, small business, and estate planning.  As your issues overlap many of these areas, I would suggest you make an appointment for a consultation before you enter into a joint will.  We offer phone consultations for those in the state that live too far to make it to our office in Plano, Texas. Initial consultations are also offered at a reduced rate.... Read More

You do not have to be in agreement to obtain a divorce. However, due to the contested nature of the divorce proceedings, you should be prepared for the divorce to be more expensive than one that is agreed. If you have children, then you need to hire an attorney. I do not suggest you try and represent yourself in a contested divorce with children. If you do not have children, you might be able to do some of the initial paperwork on your own. However, I would still seek out an attorney for some basic advice to get you on the right track and (if your matter remains contested) you will need to hire representation for your final trial. ... Read More

Separate property in Texas is everything you owned prior to marriage, all property acquired during marriage by gift or inheritance, and in some cases property acquired solely by separate property (ex., you use separate property cash to purchase a car).   Although the concept is relatively simple, the rules can sometimes get complex (ex., if you have a separate property bank account, the interest on the account is community property).    You should not be concerned about your house; however, if you buy or sell assets during your upcoming marriage or want to comingle community and separate property funds, you may want to talk to an experienced family law attorney to ensure you preserve your separate property.... Read More

The short answer is yes. If kids are involved, then I highly recommend you have an attorney draft your final divorce decree. If you do not, then you are likely to have costly issues come up in your future. Often, those costs can exceed the price of hiring an attorney to draft paperwork correctly in the first place.  For instance: Your final decree may be rejected by the judge and you will be forced to try to figure out why plus miss additional days of work to come back for another prove-up.  An experienced family law attorney can help draft language that you might not think of on your own or find in any standardized forms. Most standardized forms do not contain everything you should have in a final decree.  If your agreement has ambiguities, then future disagreements can lead to costly modifications.  Finally, there is no such thing as legalized separation in Texas. During all the time you have been living separately, you are still accumulating community property assets/debts.  If these assets/debts are not divided in the divorce decree, then they are subject to future just and right division.   While it is possible you could do this correctly on your own, it is extremely unlikely.  I would expect to spend some quality time researching Texas Family Code and in your local law library if you decide to do it on your own. If you and your spouse are truly in agreement, then an attorney should be able to discuss your case in a consultation and give you a price to draft agreed paperwork. ... Read More

You may file for divorce in Texas after living in Texas for six months. File in the county where you have lived at least 90 days. I am not sure what you mean about publicizing in the papers, but if you mean having the divorce citation served on him by publication, that is not available in cases where you know where he lives or could easily obtain that information.  You will need to have your husband served with the petition for divorce by a constable or process server.  Then your husband has an opportunity to respond to the suit.  ... Read More

I advise you hire a lawyer. Her lawyer has no obligation to even ifnform you about what the court would normally do or what your rights are.  Even for a divorce when parties agree on most terms, there are usually terms on which the spouses differ.  Then the only solution is mediation or a trial. You will want a lawyer with you at mediation and at trial.  You will have your rights and interests better protected with a lawyer on your side.  Regarding possession of your child: If the child is age three or over, Texas courts will grant you possession of your child under the expanded standard possession order. That allows overnights with you the first, third and fifth weekends of every month Friday afternoon through Monday morning with pick up and return at your child's school.  You also are allowed possession on Thursday overnight to Friday morning, again from school dismissal to school return on Friday.  Thursdays are every week during the school year. You should also get time during Thanksgiving week and the Christmas break, so please at least consult a lawyer to learn more about your rights and schedule.  ... Read More

It is likely that the court will subtract the loan and divide the value of the 401(k) minus the loan.  It is wise to double check any statement of the value of your 401(k) to determine whether it is stating the value as if the loan has been repaid or the lower value of the value of the holdings of the account minus the debt owed.  ... Read More

If the house was awarded to your ex-wife in the divorce decree, then she has the right to sell it.  You need to check the divorce decree itself as well as look at the real property records at your county clerk's office.  When you inherit real property it becomes your separate property.  In a divorce a court may only divide community property.  You may need a lawyer's help to file a Bill of Review to attempt  to overturn the award of your separate property home to your ex-wife in the divorce.  The fact that you say you "signed off on" the divorce may be a problem, however, if the decree provides that the house was awarded to your ex-wife.  Do not wait any longer to resolve the title and ownership issues with this real property.... Read More

Handling a QDRO without an attorney is a risky business, but I do understand your frustration. You may want to hire an attorney to complete the QDRO and the processing of it through the court and then the retirement plan. My initial question is why do you need his most recent statment?  You may use a percentage in the QDRO if that is what it states in your decree.  You do not need to state the current value of the account in most QDROs.  The company will know the value of the account as of the date of divorce, which is when most divorce decrees and QDROs include as the valuation date for dividing the QDRO. Assuming you have a form for the QDRO and have it completed, then you need to file a Motion with the court to enter a post-divorce order to divide the retirment.  You will need to have your ex-husband served with the Motion and proposed QDRO.  Altenatively, if he will cooperate, you may present him with a Waiver of Service for the Motion and have him sign that.   His lawyer will need to sign the QDRO before you present it to the court to sign.  ... Read More

Your husband is correct. Property you own at the time of divorce is assumed to be community property and is divisible in the divorce.  This is true whether the marriage is six months or 30 years.   A portion of your 401(k) is your separate property to the extent it was earned prior to your marriage. The court cannot take that portion from you or divide it with husband.  It is your burden, however, to prove how much you had in your 401(k) at the time of your marriage.  Request a statement from the month of marriage from the administrator of your 401(k).  The value of the 401(k) at the time of the marriage then is subtracted from the value at (close to) date of divorce.  The result is the community, divisible portion of the 401(k).   So for example, if you had $25,000 in your 401(k) at the time of marriage, and now it is worth $100,000, $75,000 of the account is divisble in the divorce.  So you and your hsuband would be dividing the $75,000.00.  Of course, if Husband has a retirement account then you are entiteld to the community property portion of his retirement account.   ... Read More

Generally you will need to include child support.  Your Judge may be different. Usually a Judge will order the non-custodial parent to pay child support to the custodial parent even if that parent prefer that the court not order support.  The Judges work for the State of Texas and the State of Texas has an interest in ensuring that the custodial parent has  funds to take care of the child without having to rely on the State for health insurance (Medicaid or CHIPs) or other State aid.   If you prepare a final decree that does not require the payment of support and the provision of health and dental insurance, the Judge may send you back to the drawing board when you show up to finalize your divorce, or the Judge may ask you if you have the means to support the child.  In agreed divorces where the parents are each going to have the child about fifty percent of the time, some couples will agree to no child support.  If you are each able to support the child during the period you have the child in your possession, then you will be more likely to convince the court to sign your decree.   I would, however, recommend that you include a child support order and wage withholding order as part of your divorce.  I see too many people come in requesting modification of decrees where the parties had agreed to no support in the divorce, but have found that the non-custodial parent does not contribute financially, and the child and custodial parent are struggling as a result.  ... Read More

You should ask to be awarded the car that is in your name and specify in the decree that the car must be turned over to you at a specific address on a specific date and time.  Figure out a way to show that she has another vehicle so you can refute her lie that your car is her only means of transportation.  The only other way to handle this so that you do not have to pay for a car you do not drive is for her to be awarded the car and be ordered in the divorce to refinance the debt on the car into a loan in her name.  That is not a fool-proof way to ensure she will refinance, however, because if she does not have good credit, she is not going to be able to refinance.  ... Read More

Texas courts will consider a request for spousal maintenance to be paid by a former spouse after divorce in certain circumstances. Spousal maintenance is like alimony but is court ordered.  The general rule is that only persons married ten years or more are eligible for spousal maintenance. If your daughter's child is a child of her husband and she maintains custody of the child, the father will be ordered to pay child support.   In some circumstances a court may make a temporary order for one spouse to pay the less monied spouse temporary spousal support while the divorce is going on.  It is fairly common for a husband to be ordered to support a stay at home mom while the divorce is pending.   There is an exception to the ten year marriage rule if there has been family violence that lead to the husband being convicted.  There is also an exception to the ten year rule for persons who cannot meet their minimum monthly needs because of an incapacitating physical or mental diability or because the spouse is caring for a child who has that degree of disability.  ... Read More

You will need to file for divorce in the county where you reside or the county where he resides.  In the divorce suit you will request that husband pay you spousal maintenance.  Has he supported you financially during the separation?  If so, then you may want to ask for that to continue after the divorce for a limited period of time. If he has not supported you, then you may have a difficult time proving that you need money from him in order to survive.  Spousal maintenance is meant to assist a former spouse meeting his or her minimum reasonable needs (such as for shelter, food, transportation).  The court limits the duration of the payments to the shortest time possible to allow the spouse to get on his or her feet after the divorce.  If you are "on your feet already," then the court is not likely to award spousal maintenance.  The court will also require that you have used due diligence in attempting to earn enought to support yourself.  If you are going to receive property in the divorce that may be liquidated to use to support yourself, then your odds of getting court awarded spousal maintenance decrease. Parties may agree to contract for alimony in a divorce decree.  If your husband agrees to pay alimony then that should be set forth in the decree. In a twenty-five year marriage the longest term for post-divorce spousal maintenance is seven years after the divorce. The maximum amount is the lesser of $5,000 per month or 20% of the spouse's average monthly gross income.   There are exceptions to the general rules for family violence situations and for disabled spouses. ... Read More

If you do still have an ownership interest in the home, it cannot be sold without your signatures. You should have an attorney review your decree to confirm that you still have an ownership interest. If your ex-wife is trying to sell the home without you, it sounds like she may have been awarded the home in the decree. Also, whether she can stay in the house or not depends on what the decree says.... Read More

To prove a common law marriage in Texas, one must show 1) an agreement to be married; 2) a holding out to others that you are married; and 3) living together as husband and wife.  If you can prove these 3 things, then the court will find that a marriage existed and the court will have jurisdiction to divide the marital estate (i.e., the community property) in the divorce.  To continue to reside in the house, you will likely need to file for divorce and obtain an order from the court that you are allowed to continue to reside in the marital home.... Read More

To over simplify, you are entitled to half of everything acquired during the marriage—including you husband’s retirement.   The 20 year “rule” is only applicable to medical (and some other) benefits.   I recommend you not sign anything before talking to an attorney.    You should hire an attorney who is very experienced with military retirement issues as well as family law.  ... Read More