Archive for April, 2017
Basic Outline for Completing an Uncontested Divorce
1. File an Original Petition for Divorce in the proper county.
Generally speaking, the proper county is the county you or the other party (Respondent) have resided in for at least 90 days prior to filing for divorce, assuming you have been a resident of the State of Texas for at least 6 months.
The petition names the parties to the suit (yes, a divorce is a law suit), establishes the court’s jurisdiction to hear the case, lays out the grounds for divorce and asks the court to grant the divorce.
2. Present a copy of the filed petition for divorce, along with a Waiver of Service, to the Respondent.
The waiver, once executed and filed with the court, tells the court that the Respondent has formal notice of the suit as required by Texas law. Normally, a party to a lawsuit must be served with legal papers before the filing party can proceed. A waiver of service does exactly what it says; it is the Respondent’s method of waiving that service thus allowing the filing party to proceed with the case.
3. File the executed waiver with the Court.
4. Draft a Final Decree of Divorce
The Final Decree of Divorce sets out the agreement of the parties. The decree includes provisions for dissolving the marriage, child custody, child support and property division. It is the document the judge will sign that officially divorces the parties.
5. Go to court after 60 days has elapsed from the time of filing and “prove up” the divorce.
The prove up consists of reciting information about the divorce to the Court so that the Court is satisfied that all of the requirements for a divorce, as outlined by the Texas Family Code, have been met. If the requirements have been met the judge will approve and sign the divorce.
6. Get a certified copy of the Final Decree of Divorce.
Once signed, a certified copy of the Final Decree of Divorce with the judge’s signature is usually available from the Court within a few days. A certified copy is used to complete a name change, establish a child support account, or simply prove that you are divorced.
How Domestic Violence May Affect Child Custody Determinations
An allegation of domestic abuse has the potential to have the greatest impact on child custody and visitation rulings. In Texas, the family court must, by law, consider all domestic violence concerns before awarding child custody (now known as “managing conservatorship” in Texas). If you have been charged with domestic violence, the court has the authority to deny custody, and to place significant limits on your right to access or possession of your minor child. The court will carefully review the allegations to ensure that they have merit, and will not curtail custody or visitation if the evidence indicates that the allegations have been made in an attempt to punish an ex-spouse, or to curry favor in a custody or visitation hearing.
As in other states, the courts in Texas always seek to give priority to what is determined to be in the best interests of the minor children. The factors evaluated by the court in making this decision may include documented history of spousal or child abuse, as well as other concerns, such as:
The respective stability of each household
The mental health of each parent
Any personal behaviors of each parent that may negatively affect the child (substance abuse, gambling, sexual promiscuity)
In Texas, the courts follow a rebuttable presumption that it is not in the best interests of a child to grant custody to a parent who has committed domestic violence. This presumption will be enforced, even if you negotiated or mediated a joint custody agreement, if the court determines that the history or threat of domestic violence influenced a parent’s decision to enter into such an agreement.
An Overview on Child Support Obligations in Texas
One of the most hypersensitive issues affecting separated and divorced parents is financial support for children. Child support disputes are not uncommon. The mistake many parents make is taking an action, like stopping payments, without considering the consequences.For example, a custodial parent may feel visitations can be denied to non-custodial parents who fail to pay support. Cutting off visitations may punish a non-custodial parent in arrears, but children also suffer by being deprived of a parental relationship. Texas family courts deal with these issues separately.
A parent, with or without visitation privileges, can be ordered to pay support. Remember, support is a parental obligation. Visitation statuses do not affect the ongoing needs of children.
Child support orders establish rules parents must follow. Child support modifications are possible, with a court’s approval under the proper circumstances. A job loss can be a valid reason.
Unemployed parents often skip child support payments rather than work within the legal system to modify support orders. A better option is to contact the Child Support Division of the state Office of the Attorney General or Family Court.
Getting the support modification ball rolling quickly is important — child support payments do not change until a court approves modification.
Child support modifications are subject to conditions and may be sought by custodial or non-custodial parents. Support orders in effect for less than three years old cannot be changed. Whatever change in circumstances drives you to request modification must qualify as “substantial” or “material.”
REMEMBER: A failure to pay child support can lead to a contempt charge and possible fines and jail time.