Family Law FAQ

Do we have to have a jury trial to get divorced?

No, not at all. You might have one, but it's rare. In fact, in the Texas fiscal year 2010 (9-1-9 to 8-31-10) for all the district courts in the entire state of Texas there were 227,120 divorce cases filed, but only 147 of them reached a final judgment by jury trial. That means you statistically have right about a 1 in 1,545 chance of having a jury trial. It's highly unlikely.

If we do need a jury trial, can you help me?

Absolutely. If a jury trial is necessary, we certainly will represent our clients zealously!

Do you fight for your clients?
Do not be fooled by the name Soft Divorce®. We are here to provide our clients with the help they need. Soft Divorce® does not mean that we are soft on an opposing attorney or party who is trying to take advantage of our clients. It means we protect our clients from that. We fight for clients in whatever way they need us to.

Can I represent myself?

Legally you can, but most of the time it's a very, very bad idea. Do not risk everything you own and do not risk the structure of the rest of your life by not hiring good legal counsel to help you.

We filed for divorce. Now what?

Now is the most important time. It is time for setting out temporary orders that will determine the arrangements between your spouse and yourself until the divorce is finalized. This is especially important if you have kids or any property that you both own such as your home, cars, boats, rental properties, and your business, to name a few.

Can we get a divorce out of court?

The Texas court system is the legal method that allows you to get a divorce in Texas. Every divorce must go through the courts. A divorce requires a petition to be filed in court and a judgment to end it. Most divorces are agreed and negotiated out but even when everything is agreeable a divorce order is not finalized until it goes to court and a judge signs the order.

What's the difference between an "attorney" and a "lawyer" and a "counselor at law"?

Short answer: They're all the same thing in Texas.

What is "Community Property"? Is Texas a Community Property state? What does that mean?

Community Property is any and all property owned by spouses that is not classified as Separate Property. Texas is called a "community property state" meaning that any property owned by the spouses that cannot be proven as separate property is assumed to be community property. This means that all property owned by either spouse that is not proven to be separate property will generally be split between the spouses by the court at the conclusion of the divorce. Community property is subject to division by the court.

What do I need to do to prepare to get divorced?

If you decide that you are ready to get divorced, the more organized you are the better. If you are thinking about divorce or believe that it might happen to you, it is a good idea to be prepared. You should contact our office and we will help you to get the important documents and information you will need. We will give you an information packet for you to complete and the information we request will help you and us get prepared to get your matter handled in the best way possible.

I'm thinking of getting a divorce, what should I do?

Set up a consultation with us through our website by clicking on the "Free Initial Consultation" text. During your time we can discuss the options that are available to you. We can also recommend a marriage counselor to speak with and various divorce support groups that can help you get through this tough emotional time for you.

What do I need to do to prepare for our initial meeting?

To make your time with us as valuable and efficient as possible you should prepare for your initial meeting by gathering important documents regarding your property. You also want to bring any evidence that is relevant to your children and child custody.

If the act of gathering documents or information would tip off your spouse, you can meet with us without bringing us any of that information. Every situation is different and we certainly have had clients who don't even have access to any financial information or records because their spouse handles all of those things. The first step is to come talk to us and we'll figure out the specific steps for you.

I'm thinking of getting a divorce, what should I NOT do?

There are some things you certainly should not do. 1. Do not make any false allegations against your spouse. 2. Do not try to provoke a fight with your spouse in order to cause or justify one of you leaving. 3. Do not cancel any insurance policies, utilities or other services.

Can you represent both me and my spouse or do we each need our own attorney?

We cannot represent both you and your spouse - even if you fully believe that you and your spouse are in complete agreement.

This is because if ever during the representation you and your spouse want something different from each other we are required by our ethical laws to resign and are not allowed to represent either spouse. We are not willing to put our clients through this so it is our practice at Soft Divorce to never represent both spouses. But we DO have a solution for you. Make an appointment, come in and talk to us and we can make an arrangement that is right for you.

I just moved to Texas, can I get divorced here?

You must live in Texas for 6 months before you can get a divorce here, and you must live 3 months inside the same county.

How do we split up our property?

The answer to this question is: it depends. That is why you need to hire an attorney - to figure out what you can do, and to help you decide what are the best options for you.

What happens to our kids after the divorce?

That depends on either the agreement reached between you and your spouse, or the decision of the judge or jury at a final trial.

Can we write our own customized possession order?

Yes. However, it cannot be stressed enough that you should absolutely not take on writing your own customized possession order without an attorney. We have seen nightmare situations when parents with the best intentions have tried to do this on their own to disastrous results.

Who is supposed to do the driving to pick up or drop off the kids?

This is all determined by the possession order. There are a lot of factors that would affect our answer about this and everybody's situations are different. But this is an important issue you should definitely discuss with your attorney.

My spouse is not represented by an attorney, does that mean I don't need one either?

No, in fact it could mean you need one even more. Without the advice of an attorney you and your spouse could have major problems with your divorce.

What's the difference between a separation and a divorce?

Texas does not recognize legal separation. This means that in Texas if you are separated you are still legally married. The only way to end a marriage in Texas is to get a divorce.

Separation can be a good personal choice if you are not ready to file for divorce. However, you must understand that everything during your separation is still a part of your marriage. Therefore, if during your separation you go buy new property that property may still be split with your spouse because you were married when it was purchased making it Community Property.

What is alimony? What is Spousal Maintenance?

Alimony is payment to a spouse by the other spouse. Alimony is generally not available in Texas, however, this is not an absolute. You should discuss this with your attorney.

Spousal Maintenance is usually a temporary amount paid from one spouse for the support of the other spouse. Spousal Maintenance is available in Texas under certain circumstances. You should discuss this with your attorney.

Can I get alimony from my spouse?

Alimony is not common in Texas. Temporary Spousal Maintenance is more common than alimony in Texas. We will have to determine your unique situation to see whether alimony would be possible.

How is child support determined or calculated?

Child support is determined by the amount of money you or your spouse make, how many children you have (both inside the marriage and out) and can be influenced by a number of other factors. It can also be determined by agreement between you and your spouse. Other factors determine which spouse pays child support and which spouse receives child support. A general rule of thumb is that the parent that has the child more than 50% of the time receives child support and the other parent must pay that child support.

Does the mother automatically get the kids and receive child support.

No. There is legally no preference for a mother or a father. But there is likely going to be a preference for the parent that spends more time caring for the children. It is determined by the best interest of the child standard. We can also get it worked out by agreement. You should discuss your specific situation with your attorney who can help you determine how it is likely to work out in your particular situation. A general rule of thumb is that the parent that has the child more than 50% of the time receives child support and the other parent must pay that child support.

How long does it take to get a divorce?

In Texas, there is a mandatory waiting period of at least 50 days before a divorce becomes final. The waiting period starts the day the divorce petition is filed. The waiting period can sometimes be shortened, but it is highly unlikely to happen. In order for the divorce to be granted in only 50 days, all issues would need to be resolved, including child custody, support, and property division. Some "hard" divorces can take several years to get resolved.

Can I keep my wedding ring?

Usually, yes, you can keep your wedding ring because your wedding ring was a gift from your spouse. In Texas, gifts are considered separate property of the individual spouse the gift was given to. The same applies for other jewelry and gifts the spouses gave to each other. However, there can be situations where this does not apply. A pre- or post-nuptial agreement might change this circumstance too.

I inherited money, does my spouse get any of that if we get a divorce?

Usually no. An inheritance is classified as Separate Property of that spouse and is therefore not split between the spouses during the divorce. But, if the inheritance went to both of you then it would be classified as community property and subject to division. For example, if your parents' will gave "you and your spouse" something after your parents died, then it belongs to both of you as community property. Even if your spouse's parents gave you something, it doesn't matter that the gift came from your spouse's parents - if it was given only to you, then it would be your separate property. Separate property belongs only to the individual spouse that owns the property, not to both spouses.

Can I cancel my spouse's insurance after we file for divorce?

No. Most counties have standing orders that prohibit this. You can be sure that temporary orders will be in place that prevent this too. Never do this.

Can I cancel the electricity or cable bill after we file for divorce? Do I have to keep making payments on things in my spouse's name?

No, usually you cannot cancel certain bills at the marriage residence or at your spouse's residence if they've moved out because standing orders or temporary orders are usually in place that prohibit this. But we might be able to get court permission to do so, or able to work this out by agreement. You might not have to keep making payments on things in your spouse's name only, but you should discuss this with your attorney before you make any decisions on this.

What happens to my credit during and after a divorce?

If you have bills in your name - even if they are also in your spouse's name - then you are responsible for paying those obligations in a timely manner otherwise your credit will be affected. If your spouse is ordered to pay those bills but fails to do so, then your credit can be affected negatively. These are tricky situations that you should discuss with your attorney. Often people have bad credit during and after a divorce. Smart planning can prevent that. Smart planning is one way that we can help you make your divorce not so hard.

My spouse has threatened to file for divorce and lock me out of the house. What can I do?

You should meet with us immediately. Your spouse might be able to go to court and request a court order to lock you out of your house without you even knowing about it under certain situations. However, if this happens, we can immediately try to undo this order. You will also be entitled to a hearing about this, usually within 10 - 20 days to attempt to get this order removed. If they do it without your knowledge, it can only be a temporary situation; but we need to prepare to fight this as soon as possible.

Can I lock my spouse out of the house or get a court order that allows me to do that?

Under certain situations you can get a court order allowing you to live in your home and preventing your spouse from entering. You should talk to your lawyer if you need to do this. You need to have a good reason for this and your lawyer can discuss your individual situation to see if you would qualify.

My spouse has threatened to take and hide my kids from me. What can I do?

You need to call us immediately and we need to get court intervention immediately. You might need to get the police involved, but we cannot tell you that as a general rule. If at any time your kids are in physical danger you should call the police emergency number 911, then contact us as soon as humanly possible thereafter.

My spouse has an alcohol and/or drug problem. What can I do to protect myself and my kids?

Both during and after a divorce case, a court can order alcohol and drug testing and treatment as a condition of child custody or possession. The court can also order supervised visitation of the children. This is a very complex issue and you should discuss this with your attorney.

My spouse hit me. What should I do?

This is a very difficult issue that is made more difficult by very intense emotions. Violence between spouses is never ok. If you are in physical danger you should remove yourself from that situation and if your safety is in jeopardy you should call the police. We can help you so please call us if you are ever in this situation.

What is a geographic restriction in a possession order?

There are a variety of types of geographic restrictions. Some prevent a spouse from changing the residence of the children outside of a specific geographic location - usually a county or surrounding counties. This protects both spouses from the other one moving far away from each other to make child possession difficult for the other party.

What is a "morality clause"?

A morality clause is an agreement or order that restricts the spouses from having an overnight visit with someone they are dating between certain hours of the day while the children are present.

What's a Standing Order?

A standing order is an order that applies to every divorce case filed in a particular county. Dallas, Tarrant, Denton, Collin and many other counties all have standing orders that must be followed from the moment that the divorce petition is filed.

What are Final Orders in a divorce?

The final orders are contained in the decree of divorce that is the final step in the divorce process. The divorce decree is the result of the divorce process. The decree contains the terms of the divorce and resolves all issues, including property division, child custody, and child support.

What is a SAPCR?

SAPCR is an acronym for a Suit Affecting the Parent Child Relationship. A divorce between parents also contains a SAPCR. But a SAPCR can also be filed independently without the need for a divorce. Any child custody court case in Texas is called a SAPCR.

My spouse has violated our existing possession order. What can I do?

We can go to court to seek an enforcement order. We can also try to work out the issues without court intervention. The exact right strategy would depend on the unique, specific situation you're facing so you'll need to talk to your attorney about this question.

I don't like our existing possession order. Can I get it changed?

Perhaps. It depends on a lot of factors. Time and substantial changes in circumstances can both sometimes allow a modification of possession. The standard will be based on the best interest of the child. You'll need to discuss this with your attorney.

One thing to be noted is that the court will only consider the time period since the last order was entered. For example, if the possession order was a final divorce decree, you can't bring up things from before the divorce was granted. It is presumed that all of those issues were already decided and reflected in the last order.

How long do I have to pay child support? How long do I get to receive child support?

You will have to pay it or get to receive it for the length of time ordered by the court. Usually, child support is paid until the child reaches the age of 18 or longer if the child is still in high school. However, if the child is emancipated from the parents or certain other limited circumstances, child support may be cut off at that earlier date. Child support also might continue longer by agreement, such as through college.

How long do I have to pay child support or get to receive child support if my child has a handicap?

It will depend on the length of time ordered by the court, but special needs children often have customized, specialized orders that take their special needs into account.

My spouse isn't spending the child support money on the kids. What can I do?

This is a very common question. The general rule is that the money doesn't have to be spend directly on the children, the parent who receives child support does not have to keep or provide receipts to the other parent (unless they agree to do so in a court order), and there is really no restriction on the money. Generally they can spend it on whatever they want. However, a parent does have an obligation and duty to provide proper care for the children. If this is a circumstance in your situation, you should set up a consultation to talk with an attorney.

Who has to pay for the insurance for the kids?
This is determined in the divorce and usually will be specified in the temporary and final orders. You cannot cancel the insurance for the children during the divorce.

Should I file for divorce first to "beat my spouse to the punch"?

Divorce is not a race dependent on who files first. As a general rule we do not encourage a client to file for divorce in order to beat your spouse to the punch. However, we do recommend that you begin preparations for your case if you anticipate that either you or your spouse will file for divorce. You should file for divorce when you are ready not simply so your spouse does not do it first. It is also better to be properly prepared before you file instead of trying to scramble to put everything together in a short time because you're in a rush to file.

I hit my spouse. Can my spouse take my kids away from me? There have been allegations of abuse in our marriage. What's going to happen if we file for divorce?

First, and most importantly, do not hit your spouse. But if you have, you need to call us immediately. If you hit your spouse or your spouse hit you, that is considered family violence and it can very seriously negatively affect child custody.

An abused spouse may also obtain a protective order against the aggressor spouse. That can result in exclusion from the marital home (a lock-out order) and other negative consequences.

I take great care of my kids when I have them. When it's my spouse's turn to take care of the kids, they are seriously neglected. What can I do?

This is a very tough situation. If the kids are in danger, then clearly you must protect your children so court or police intervention may be required. You should absolutely talk to your attorney about this to determine the best way for you to proceed in your specific situation.