Frequently Asked Questions About Divorce
Turn to O’Neil Wysocki for Answers
Divorce can be an incredibly confusing time for many people, especially since divorce law changes depending on the state you live in. We’ve assembled a few frequently asked questions people ask us about their cases.
To tell us about your situation. Call us at (972) 852-8000 today.
In the state of Texas, you have the option of filing on grounds of either "fault" or "no fault." This means that you can either prove that one of the state's fault-based grounds for divorce is true, or you can get a divorce based on irreconcilable differences.
According to Texas Family Code §6.001-6.008, the grounds for divorce in Texas include:
- Insupportability (irreconcilable differences)
- Conviction of felony
- Living apart (for at least three years)
- Confinement of the other spouse in a mental hospital (for at least three years)
Before a divorce can be filed in Texas, at least one of the spouses must have been living within the state for at least six months. Furthermore, at least one of the spouses must have lived in the county where the divorce is being filed for 90 days or longer. The divorce process goes much more quickly if both parties are able to agree on their divorce terms. If they are not, the spouses will have to handle the matter through litigation, which can extend the length of time.
What types of divorce does your firm handle?
At O’Neil Wysocki P.C., we are able to handle all types of divorces. We can help individuals who are dealing with contested divorces (in which the parties cannot agree on the divorce terms) and uncontested divorces (in which they are able to reach agreements outside of court). We also have experience handling high net worth divorces and business owner divorces, in which the process of asset and debt division can be particularly challenging. We also represent same-sex divorces and other matters affecting same-sex couples.
Will my divorce go to trial?
Not all divorces wind up in court. Around 95% of all divorces in the United States are uncontested, meaning the couples agreed on most issues regarding such things as alimony, child support, visitation, and property division. When couples can agree on how they can go about separating their lives, they don’t need to spend countless months fighting each other in a court of law.
With uncontested divorces, spouses work together to negotiate settlements. They can collaborate with a mediator to come to agreements on essential divorce issues. After the entire process, they then can bring the agreement before a judge for finalization. If an out-of-court settlement is impossible, then the case will go to trial as a contested divorce.
Who gets the house in a divorce?
In Texas, the presumption the court makes is all property belonging to both spouses is community property. This means both spouses acquired and shared the assets during the marriage. Unless the house was bought exclusively for the use of one spouse by one spouse, the house would be considered community property. Since all divorces require an equitable division of all community property, one of the spouses will get the house, and the other will receive an equitable amount for half of what the house is worth. For example, if you decide to give up the house to your ex, you may be awarded alimony.
Will I need to receive or pay alimony?
Modern law allows either spouse to get alimony; however, this is based on the judge’s determination that one spouse is negatively affected financially by the divorce. For example, if one spouse took time off of work to care for a child, the spouse would likely receive alimony until he or she was able to transition back into the workforce.
Likewise, a spouse caring for a child with physical or mental disabilities might need to stay home at all hours to look after that child. In cases like these, the court may award alimony for as long as such care was required. A spouse with a disability that prevents them from working might also be awarded spousal support.
Where do I file for divorce?
Divorces are typically held at the petitioner’s county courthouse. Texas, like all other states, has residency requirements that parties must meet before they can file for divorce. Texas requires that the petitioner live in the state for six months and in the county for 90 days before filing.
If the parties have separated and lived in different counties for more than 90 days, then the divorce can be filed in either spouse’s county of residence. If neither party meets the residency requirements, then the parties may have to wait to file until they establish residency in a Texas county.
What happens if I don't show up to court?
Failure to appear for a hearing or trial can result in a default being taken against you. In other words, whatever the other party asks for at the hearing, they will win in your absence. If this happens, talk to an attorney immediately. Sometimes, if you have a valid reason for not being in court, a judge will give you a second chance.
How much will my divorce cost?
It is difficult to determine in advance how much the case will cost. The total fees will depend on the difficulty of the issues and the time involved. It is impossible to know in advance what issues the other side will raise, what motions they may file that will require hearings, or what other difficulties may come up. Your lawyer may be able to give you estimates for particular aspects of the case as you go along. An exhaustive “leave no stone unturned” approach can be very costly and mostly unwarranted.
Who will pay my legal fees?
In Texas, usually the community property assets can be utilized to pay both sides’ legal fees. If one spouse doesn’t have access to community assets to pay legal fees, then he or she can file a motion to get access to property to pay fees. If there are insufficient cash assets to pay fees, then a party can file a motion to sell assets to pay for fees.
Do I have to pay for a lawyer even if I don't want the divorce?
Texas has a no-fault divorce statute, which means a divorce can be granted even if only one party wants it. So, even if you don’t want the divorce, the divorce can happen anyway. If you want your interests to be protected, you will need to consult an attorney. The attorney will require payment in some fashion.
What can I do to keep legal costs down?
The better your organizational skills, the more you can help your attorney and keep your costs down. Check with your lawyer to make sure your efforts will be an efficient way to help. Gathering and organizing documents, such as bank statements or other financial records, can be very helpful.
One of the least efficient uses of your lawyer’s time is to call frequently. Make a list of topics and questions to ask all at once, to cut down on the number of calls made. A single organized call to address three questions will be more efficient and less costly than three separate calls. Also, when you need to vent your feelings and frustrations about the other spouse, talk to a therapist and not your lawyer.
How can I help with my case?
Be sure to coordinate your efforts with your lawyer to make sure you are being effective. Generally speaking, the more organized you are, the more help you are to your lawyer. Organizing your thoughts about what you want from the court and the facts supporting why you should get it can be very helpful. Also, gathering and organizing financial records can make your lawyer’s life easier and save you money. Keeping a journal of your interactions with the children is a helpful task in a custody case.
Can I change lawyers?
You have an absolute right to have the lawyer of your choice. If you become dissatisfied with your lawyer, you can fire that lawyer and hire another one. Keep in mind that the new lawyer may spend time, and therefore charge you money, for getting up to speed on your case. And, your contractual obligations to pay your prior lawyer for time spent on your case are not relieved just because you change lawyers.
Can I change the judge?
The court and judge assigned to the case are set in stone. Judges are reelected every 4 years and may be replaced by a newly elected judge. In extremely rare situations, a judge may be found to have such a severe conflict of interest or bias that the case can be moved to another court. The better approach to avoid the uncertainty of a judge’s decision is to make the best agreement for settlement possible.
Can the court order us to attend marriage counseling?
A court in Texas can order spouses to attend counseling prior to moving forward with divorce litigation. Texas courts do not commonly order counseling even upon the request of a party. A likely reason that courts rarely order counseling is that the purpose of the counseling is to determine if there is a reasonable expectation that the parties can reconcile. If a spouse has taken the steps to consult with a divorce attorney and has filed for divorce, then there is likely little possibility that the marriage can be reconciled. Additionally, marriage counseling can be expensive.
Will I lose my health insurance if I get a divorce?
Many Texans get health insurance through their spouse’s employer, and loss of that insurance is often a major concern in divorce. Once a divorce is finalized, your spouse will no longer be able to carry you on his or her employer’s health insurance; however, divorcing spouses still have options.
Every county in North Texas has adopted standing orders, which automatically go into effect when a divorce is filed. These standing orders prevent divorcing spouses from altering health insurance benefits while the divorce is pending. Even when the divorce is finalized, a spouse may still be able to maintain his or her coverage through a federal law called COBRA.
COBRA allows a divorcing spouse to buy health insurance coverage through their ex-spouse’s employer for up to 36 months. The cost of COBRA coverage must be within 102% of the combined total of a similar employer’s and employee’s contribution to the plan. There may be less expensive options available for relatively healthy spouses, but COBRA can be a good option to maintain coverage.
Can my spouse continue to use our credit cards?
At the beginning of a divorce, most courts enter orders that regulate each party’s use of credit during the divorce. Although a judge won’t prohibit use of credit altogether, the order will require only reasonable spending. This isn’t the time for extravagant purchases. Sometimes, a spouse will cancel credit cards prior to the divorce being filed. If there is a question about this, call the credit card company in advance.
Will my spouse be required to return to work?
As in many divorce situations, whether one spouse may be required to get a job depends greatly on the facts of that particular situation. Because post-divorce alimony is very limited in Texas, the reality is that most circumstances will require both spouses to work after the divorce.
Where one spouse has not worked outside the home for a while during the marriage, there may be a period of time while the divorce works through the process that the money-earning spouse will be required to support the stay-at-home spouse to facilitate the adjustment to the new status quo.
Can I take my children on vacation during my divorce?
Many counties in Texas have Standing Orders that contain specific injunctions regarding the removal of children beyond the state of Texas during the pendency of a divorce or custody case. Many of these Standing Orders specifically prohibit anyone from removing the children beyond the state of Texas unless you have a written agreement of the parties or a specific court order that allows you to do so.
Therefore, you can take your children on vacation, but you have to stay within the state of Texas, unless the other party agrees in writing and/or you obtain a court order that allows you to do so.
Can I buy a house during the divorce?
It is not wise to create new assets or financial obligations when you are trying to divide the current assets/debts. In some circumstances, such as by agreement or when the parties have significant financial abilities, the parties may agree to allow such a purchase.
What if I have some cash I don't want to tell my spouse about?
You and your lawyer have an ethical responsibility to be honest, truthful, and fully disclose issues related to the case. In fact, at some point during your divorce, you will likely have to swear under oath as to all of the assets and debts that you are aware of. If you knowingly hide assets and your attorney finds out, the attorney will be obligated to withdraw from representing you if you refuse to tell the truth.
Should I move out of the house?
Whether or not a spouse should move out of the house depends mostly on the individual circumstances of the situation. However, one important thing to know in making this decision is that the person who moves out of the house does not forfeit his or her ownership interest in the house or furnishings and personal items contained in the house. He or she will still have the right to include the equity value of the residence in the division of the property. (Consider videotaping the contents before you move out!)
Moving out will definitely make it more difficult to get a judge to allow the spouse to move back in. If there are children to be considered, a judge will weigh heavily awarding the possession of the house to the parent with primary conservatorship of the children while the divorce is pending. Which spouse can afford the house may be a factor at the end of the case in the final award, but will likely not be a factor at the beginning of the divorce proceedings.
Another important factor in deciding whether to move out of the house is whether there have been or might be allegations of physical violence between the spouses while they are unhappily living together. False allegations happen and can be prevented by getting physically separated, even if one spouse has to move out of the house.
Can I make my spouse sign a joint tax return?
The tax filing status as married or single is determined as of the last day of the year. So, if the divorce remains pending as of December 31st, the parties are still married for tax purposes. If the divorce is granted during the tax year, then the parties’ marital status is probably single as of December 31st.
Typically, parties cannot be forced to sign a joint tax return. In most circumstances, it is usually more advantageous for parties to file a joint return than to file separately. The advice of a good CPA to give each spouse independent advice makes sense.
Can I date during my divorce?
In Texas, parties are considered married until the divorce is granted; therefore, dating even after a divorce is filed can be considered adultery. Furthermore, the party’s conduct during the divorce can be considered by the judge in reaching a decision. If you are dating during the divorce, do not take your children around the boyfriend or girlfriend while the case is pending.
If you need more information about questions not listed here, contact us today for an initial consultation.