Answers to the most frequently asked questions about Texas family law (2022)

If you are preparing for a family law case of any kind, the decision that you make regarding what kind of attorney to hire for representation is crucial. Not all attorneys are created equal and it is up to you to figure out which ones are capable of providing you and your family with the representation that you deserve. At a bare minimum, the attorney you decide to hire should have family law experience. Being an attorney who has done a divorce or two won't cut it. Trust me- from being in courtrooms and mediations across southeast Texas I can tell you that there is a huge difference between an attorney who has handled one or has handled a hundred family law cases.

As you head into a case you likely have several questions that need answers. Whether this is your first foray into family court or has had multiple family law cases before, I wanted to go over some of the most frequently asked family law questions that you may be asking yourself now. I think going over these questions will do two things: 1) it will provide you answers that you need to expand your base of knowledge on this subject, and 2) it will give you something to ask a potential attorney when you are interviewing them for representation purposes. Simply put, if the attorney you are talking to can't answer these questions then you ought to leave their office and continue your search for representation.

I should mention that the attorneys with the Law Office of Bryan Fagan offer free of charge consultations with our licensed family law attorneys six days a week. You will have the opportunity to ask questions of one of our experienced family law attorneys and to receive direct feedback about your particular circumstances.

Can you make your spouse pay your attorney's fees in a Texas divorce?

When I first have a conversation with a new client I will always ask him or her what their goals are. The "magic wand" conversation is what I call it. I will ask the client to pretend that the pen that I am holding is a magic wand that can grant wishes. I want to know what that person wants to see happen in their case. In a perfect world, what does he or she want to have accomplished when the case is done and over with?

Many times that person will tell me that they want their husband or wife to pay for the divorce. As in, pay actual money for the divorce's costs- attorney's fees, court costs, etc. Their reasoning is pretty straightforward: my spouse caused the divorce to occur and therefore he or she should have to pay for the costs associated with my having to hire an attorney. But for their bad behavior, this person would not have had to hire an attorney, miss work, pay money for a babysitter, go through all the difficulties associated with divorce, etc.

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Unfortunately, the situation that led to the divorce is often infidelity/adultery. People who are not faithful to their spouse, in addition to money fights and money related problems, are probably the two most common causes of divorce from my experience. People are enraged, understandably, when they find that their spouse has been unfaithful. There is a betrayal of trust that occurs in a marriage when one spouse has a romantic encounter or encounters with another person. The immediate reaction for many spouses is to move for a divorce.

Just about every adult knows that adultery is a reason why people can get a divorce in Texas. The state has certain "fault grounds" for divorce and adultery is one of those. What confuses some people is the issue of whether or not there has to be a "reason" listed in their petition for divorce, or if two people can get a divorce in Texas for no particular reason at all.

The answer is that Texas is a no-fault state as far as divorce is concerned. This means that you or your spouse can file for divorce at any time you want, for any reason (or none at all). No-fault grounds means that you are telling the court that your marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Before you start to think that I suddenly became a very eloquent writer, that is the exact language from the Texas Family Code that is used in divorce documents every day in our state. Basically what it says is that you and your spouse's personalities differ to such an extent that you can no longer continue to be married and have no reasonable chance at reconciling. The bottom line is this: you can get divorced in Texas for something as serious as domestic violence or infidelity or for something as silly as your not liking the way that your spouse chews their dinner.

(Video) Texas Family Law (Basics)

Either way, the divorce process will work the same- fault grounds or not. You will file a petition for divorce which will be answered by your spouse. From there you will either negotiate for final orders or attend a trial in which a judge will issue final orders for all the relevant areas of your case. Those final orders will be contained in the final decree of divorce that you, your spouse and the judge sign. Once that step is accomplished your divorce will be complete.

What are the fault grounds for divorce in Texas?

If you believe that you have a very good reason for divorcing your spouse, more significant than how they chew their food, then you will need to specify that particular reason in your petition for divorce. We call those "reasons" for divorce "fault grounds" for divorce. We've already discussed adultery as a fault ground as well as domestic violence (which falls under the headline of Cruelty). Additional fault grounds include conviction of felonies, abandonment, living apart and confinement in a mental hospital.

Whether you can cite one of these fault grounds for divorce or not, your spouse cannot offer a defense to the divorce petition that is sufficient to stop the divorce from occurring. Once the petition for divorce is filed, as long as you meet all the requirements for getting the divorce done you will get a divorce. This is true whether or not your spouse wants the divorce to move forward or not.

Why do fault grounds matter in the long run?

This is a relevant question to ask. If the only reason why fault grounds existed were to forever memorialize your divorce as one caused by your spouse's bad behavior, then fault grounds wouldn't serve much of a purpose other than to make you feel a little better by hurting the pride of your spouse or embarrassing him or her. However, this is not much of a victory for you and doesn't serve much of a purpose for anyone.

(Video) Texas Family Law News- hosted by The Palmer Law Firm

The purpose that fault grounds in a divorce serve is that a court may choose to consider the conduct of your spouse when determining how to divide up your community estate in a divorce. This is especially true when the fault ground involves your spouse misusing or abusing community assets. Such as if your spouse spent thousands of your community property income on gifts or hotel rooms, etc. for a girlfriend of his.

Courts start from a position that any community property owned by you and your spouse should be split evenly in your divorce. However, judges can take the specific circumstances of you and your spouse into consideration in awarding a disproportionate share of the estate to either you or your spouse.

This is where fault grounds come into play. Courts will not award a disproportionate share of your community estate to you to punish your spouse, but rather to divide things up in a manner that is fair and reflective of the relative fault that each spouse played in the breakup of your marriage. If your spouse was abusive towards you or used your community estate in a way that is inappropriate and wasteful then those are two grounds for divorce that you should consider filing under.

What do you need to do to prove a fault ground for divorce?

There is a big difference between telling a court in your petition for divorce that your spouse engaged in adulterous behavior, but it is an entirely different thing altogether for you to be able to prove those grounds for divorce to the extent that your final decree of divorce states that adultery was the cause of your divorce. The way to bridge this gap is to be able to prove that your spouse committed adultery (or any other fault ground) against you, therefore causing the breakup of your marriage.

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If you are attempting to assert a fault ground for divorce, then it is up to you to establish the cause of action by a preponderance of the evidence. This means that you must be able to show that it is more likely than not that the fault ground led to the breakup of your marriage. You must be able to assert the cause of action and establish the facts sufficient to prove that cause.

What can be done (if anything) to keep your spouse from draining the bank account?

Are you concerned about the possibility of your spouse taking every penny in your joint bank account and either spending it all or hiding it from you? These are very well-founded concerns. People are not themselves during a divorce, and typically people end up being the worst versions of themselves due to the stress of a divorce. This can very easily lead to your spouse taking some liberties with the money that he or she has access to. Is there anything that you can do to prevent your savings from getting drained by your spouse while the divorce is going on?

After you file your divorce you can ask the court to grant what is called a temporary restraining order (TRO). This restraining order can be granted immediately upon the filing of your case without first having to go to a hearing to allow your spouse to offer arguments as to whether or not the restraining order should be granted. The purpose of the restraining order is to preserve the property of both you and your spouse.

Specifically, you and your spouse will be prevented from communicating with your spouse using vulgar language, threatening your spouse either in person or by phone, destroying the property of your spouse or harming your children. There are additional protections in place relating to damaging or tampering with the property of your spouse, as well.

(Video) Texas Divorce Frequently Asked Questions

What you can continue to do is spend money on reasonable attorney's fees. A temporary restraining order cannot prohibit you from entering your residence or from conducting your normal activities related to work. Otherwise, the temporary restraining order is a great way for you to protect yourself, your children and your property while you wait for a court date.

More frequently asked questions related to divorce- and their answers- in tomorrow's blog post

Please join us tomorrow as we continue to discuss frequently asked questions and their answers to important divorce problems. In the meantime, if you have any questions about the material contained in today's blog post then please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.

Our attorneys and staff represent clients across southeast Texas and do so with a great deal of pride. We put the interests of our clients ahead of ourselves and strive to provide the best in legal services to those clients and their families. Thank you for spending part of your day with us here on our blog.

FAQs

Does Texas favor mothers in custody cases? ›

Texas family code does not favor mothers in custody battles. In fact, it prohibits the consideration of sex during the process of determining child custody. This means that the judge is not allowed to show bias towards mothers or fathers — great news for a father fighting for custody of his child.

What do judges look for in child custody cases Texas? ›

Age and health of the child(ren) Age and health of the parents (or a non-parent conservator involved in the matter) Special needs of any involved parties. Stability of home environment of the child.

Are text messages admissible in Family Court in Texas? ›

Texts may be inadmissible hearsay, and in some cases, may be considered an invasion of privacy. Currently, then, text messages are potentially admissible in family law or divorce proceedings at the discretion of the judge, based on existing rules of evidence.

What are grounds for terminating parental rights in Texas? ›

Terminating parental rights in Texas is a very difficult and serious matter. Most grounds for terminating parental rights fall under the categories of endangerment, abuse, and neglect.

What do judges look for in child custody cases? ›

The most basic part of the "best interests" standard is that custody decisions should serve the children's health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child's special educational, medical, mental health, and other needs.

What is considered an unstable home for a child? ›

The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general ill repair. The second physical instability comes from the physical interactions that occur between family members.

What are the 12 best interest factors child custody? ›

Best interest of the child checklist
  • Parental fitness.
  • Who has been the child's primary caretaker.
  • Parents' histories of crime, violence or substance abuse.
  • The parent-child relationship.
  • The child's age.
  • Ensuring stability in the child's life.
  • The child's physical and mental health needs.

What is in the best interest of the child? ›

These two considerations are: “the benefit to the child of having a meaningful relationship with both of the child's parents; and. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

How does a judge decide custody Texas? ›

In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child's primary caregiver; the ...

Can screenshots of text messages be used in court? ›

(§ 901(b)(11) ). You can authenticate text messages by presenting: a “copy,” a screenshot, photo, or print-out of the message that includes identifying information that links the message to the texter, and. testimony or affidavit that the copy is a true and accurate representation of the text messages.

How far back can text messages be retrieved? ›

Most newer Android devices will let you view all your text messages but older models may limit you to viewing just the last 30 days' worth of messages. In some instances, you can delete messages as old as 3 months. In some other carriers, you can go beyond 6 months.

Can deleted text messages be retrieved? ›

If you simply delete a text, they are still available. And there are common forensics tools used by both law enforcement and civil investigators to recover them.

Can a child choose not to visit a parent in Texas? ›

In most states, including Texas, children under 18 cannot legally decide whether or not to see their parents. I tell the parent I am meeting with the only people who get to make decisions regarding the child's visitation is the parents together or a Judge.

What percentage of income is child support in Texas? ›

Texas child support laws provide the following Guideline calculations: one child= 20% of Net Monthly Income (discussed further below); two children = 25% of Net Monthly Income; three children = 30% of Net Monthly Income; four children = 35% of Net Monthly Income; five children = 40% of Net Monthly Income; and six ...

How can a mother get full custody in Texas? ›

There are two ways you can win full custody in a family court: You can file for sole custody or. You can file to terminate the other parent's rights.

How do you show the court you are a good parent? ›

Keep a file of the following records to prove that you are a great parent:
  1. Birth Certificate.
  2. Social Security Card.
  3. Academic Transcripts.
  4. Behavioral Reports.
  5. Awards and Certifications.
  6. Health Records.

What two factors do courts consider most when deciding on the custody of a child? ›

Factors Judges Use When Deciding Custody
  • children's ages.
  • needs of the children.
  • each parent's ability to meet the children's needs.
  • relationship between the children and each parent.
  • relationship between the children and other family members.
  • keeping stability in children's lives.
  • children's physical and mental health.

How do you prove a parent is mentally unstable? ›

How Does a Family Court Determine If a Parent Is Unfit?
  1. A history of child abuse. ...
  2. A history of substance abuse. ...
  3. A history of domestic violence. ...
  4. The parent's ability to make age-appropriate decisions for a child. ...
  5. The parent's ability to communicate with a child. ...
  6. Psychiatric concerns. ...
  7. The parent's living conditions.

What's the most child support can take? ›

Is there a limit to the amount of money that can be taken from my paycheck for child support?
  • 50 percent of disposable income if an obligated parent has a second family.
  • 60 percent if there is no second family.
20 Jul 2016

What is parent alienation? ›

Parental alienation is a strategy whereby one parent intentionally displays to the child unjustified negativity aimed at the other parent. The purpose of this strategy is to damage the child's relationship with the other parent and to turn the child's emotions against that other parent.

How do you beat a narcissist in child custody? ›

Divorcing a narcissist
  1. Understand the family court process. ...
  2. Hire an experienced lawyer. ...
  3. Set firm communication boundaries. ...
  4. Document all interactions with your ex. ...
  5. Consider sole and joint custody. ...
  6. Prepare evidence. ...
  7. Create a detailed parenting plan and schedule. ...
  8. Request a custody evaluation.

How do you win a custody battle against a narcissist? ›

The process of securing child custody against a narcissist is essentially the same as with anybody else. Both parents must either agree on a custody plan during mediation and take it to court to be approved, or they must fight over the specifics of their arrangement during litigation.

What is the most common child custody agreement? ›

Joint custody, where both parents have custody of all children involved, is preferred and is the most common arrangement, if conditions allow.

What is doctrine of parens patriae? ›

In law, parens patriae refers to the public policy power of the State to intervene against an abusive or negligent parent, legal guardian, or informal custodian, and to act as the parent of any child or individual who is in need of protection.

What is parental obligation? ›

A parent in the United States must meet their child's basic needs. This means that they give their child medical care, housing, education, and food. In addition, parents are expected to meet a child's emotional and physical needs. They are responsible for protecting their child from harm and abuse.

How many miles can a custodial parent move in Texas? ›

Under Texas law, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) protects the rights of non-custodial parents in case the other parent intends to take the child and move out of the state (or more than 100 miles away from the current location).

How often can you modify child custody in Texas? ›

Can I ask that custody be changed within one year of the current order? Unless you meet certain legal requirements, you must wait at least a year before going back to court to change primary custody of a child. Learn more here: Child Custody Modification within a Year of Current Order.

Who usually gets custody in Texas? ›

The best interest of the child is paramount, and the presumption in Texas is that a standard or expanded standard possession schedule—where the parents share custody of the child—is in the best interest of the child. The age of the child may also play a role in who gets the kids in a divorce.

Can text messages be deleted permanently? ›

Deleting Texts From Your Android Phone

You can delete individual texts or conversations within your messaging app. For individual texts, hover over the text you want to delete within the conversation and select the trash can icon in the top right corner to delete.

How do you save text messages for court? ›

Steps to print text messages for court on Android

Install SMS Backup+ on any Android phone. Select "connect" and enter your Gmail account information. Choose "backup." Open your Gmail account to access and print your text messages for court.

Can I use text messages as evidence in family court? ›

Can they be used as evidence in family court proceedings? The answer to that is yes. They can be used to 'back up' anything you are trying to prove.

Can someone delete messages from my phone remotely? ›

All replies. No, messages on your phone can only be deleted by you. The sender can delete the messages on their end if they choose to do so.

How can I retrieve deleted text messages from another phone? ›

How to Retrieve Deleted Text Messages from Another Android Phone
  1. Launch PhoneRescue for Android. Run PhoneRescue for Android and connect another Android phone to the computer with a USB cable. ...
  2. Choose Messages to Scan. ...
  3. Recover Deleted Text Messages. ...
  4. Root Device to Scan Deleted Text Messages. ...
  5. Retrieve Deleted Text Messages.
5 days ago

Can someone on your phone plan see your texts T-Mobile? ›

No, T-Mobile does not store records of your text messages. It is all backed up into your device. What is this? You won't be able to see the contents of the message, and the only thing you can get hold of is the record of the number that texted you and the number you texted.

Where do deleted texts go? ›

The Android operating system stores text messages in the phone's memory, so if they're deleted, there's no way to retrieve them. You can, however, install a text message backup application from the Android market that allows you to restore any deleted text messages.

How do I see hidden messages on iPhone? ›

Step 1. Access your iPhone and open the Message app. Step 2. Switch to the Unknown Senders list to check hidden text messages.

When you delete a text message where does it go? ›

Even when you 'permanently' clear messages, you're simply getting the phone to stop listing it in the deleted items folder. You can't recover such texts on the phone itself, but there are plenty of commercially available software packages you can buy that allow your PC to read data directly from a SIM card.

What is considered an unstable home for a child? ›

The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general ill repair. The second physical instability comes from the physical interactions that occur between family members.

What age does a child have a say in visitation in Texas? ›

This section of the Family Code provides a way for a child who is at least twelve years old to express their wishes about which parent they will live with and other aspects of visitation.

Can my ex dictate who is around my child? ›

Controlling Who Is Around Your Child

In general, you do not have the power to dictate which adults are around your child when they are with the other parent. When you have your child, you can decide who is present. You can decide whether to introduce them to a romantic partner or not.

Does child support increase if salary increases in Texas? ›

Modifications are based on the noncustodial parent's current income. If you are making more money now than you were when the child support order was established or last modified, the court may increase the amount of child support you are ordered to pay.

Is there a cap on child support in Texas? ›

Texas also places a cap on net resources, which is adjusted every six years based on inflation. Effective Sept. 1, 2019, Texas raised the child support cap from $8,550 to $9,200.

Do you have to pay child support if you have 50/50 custody in Texas? ›

It's incredibly rare that a 50/50 agreement doesn't involve child support in Texas because both parents rarely earn the same income. Most likely, there will be some disparity (often a big one) in earnings.

At what age can a child refuse to see a parent in Texas? ›

At What Age Can a Child Refuse Visitation in Texas? In Texas, there is no age under 18 that allows for a child to refuse visitation. Visitation is the right of the parent, and it cannot be taken away by the custodial parent or child. The only option would be for the custodial parent to request a modification of orders.

What makes a parent unfit in Texas? ›

The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit.

At what age can a child decide which parent they want to live with in Texas? ›

In the state of Texas, a child's decision cannot be the sole factor in determining which parent the child lives with. When the child reaches the age of 12, upon motion, the court can consider the child's wishes when it comes to who they will live with.

How can a mother get full custody in Texas? ›

There are two ways you can win full custody in a family court: You can file for sole custody or. You can file to terminate the other parent's rights.

How can a mother lose custody of her child in Texas? ›

What follows is a discussion of the most common ways to lose custody in Texas.
  1. Child Abuse. Of all the ways to lose custody in Texas, child abuse is the most tragic. ...
  2. False Allegations of Child Abuse. ...
  3. Child Abduction. ...
  4. Child Neglect. ...
  5. Domestic Violence. ...
  6. Violating a Child Custody Order. ...
  7. Parental Alienation. ...
  8. Refusal to Co-Parent.
17 Nov 2021

Who gets custody in Texas? ›

The best interest of the child is paramount, and the presumption in Texas is that a standard or expanded standard possession schedule—where the parents share custody of the child—is in the best interest of the child. The age of the child may also play a role in who gets the kids in a divorce.

How many miles can a custodial parent move in Texas? ›

Under Texas law, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) protects the rights of non-custodial parents in case the other parent intends to take the child and move out of the state (or more than 100 miles away from the current location).

At what age can a child refuse to see a parent in Texas? ›

At What Age Can a Child Refuse Visitation in Texas? In Texas, there is no age under 18 that allows for a child to refuse visitation. Visitation is the right of the parent, and it cannot be taken away by the custodial parent or child. The only option would be for the custodial parent to request a modification of orders.

What age does a child have a say in visitation in Texas? ›

This section of the Family Code provides a way for a child who is at least twelve years old to express their wishes about which parent they will live with and other aspects of visitation.

What makes a mother unfit in Texas? ›

In the courts eyes, determining an unfit parent include: A history of drugs or alcohol. Sexual offenses. Emotional abuse.

Can my ex dictate who is around my child? ›

Controlling Who Is Around Your Child

In general, you do not have the power to dictate which adults are around your child when they are with the other parent. When you have your child, you can decide who is present. You can decide whether to introduce them to a romantic partner or not.

Why do fathers lose custody? ›

The most frequently occurring reasons why a custodial parent loses custody include: Child abuse or neglect. Spousal abuse. Drug or alcohol abuse or addiction.

What percentage of income is child support in Texas? ›

Texas child support laws provide the following Guideline calculations: one child= 20% of Net Monthly Income (discussed further below); two children = 25% of Net Monthly Income; three children = 30% of Net Monthly Income; four children = 35% of Net Monthly Income; five children = 40% of Net Monthly Income; and six ...

How often can you modify child custody in Texas? ›

Can I ask that custody be changed within one year of the current order? Unless you meet certain legal requirements, you must wait at least a year before going back to court to change primary custody of a child. Learn more here: Child Custody Modification within a Year of Current Order.

How does a judge determine custody in Texas? ›

Generally, the way custody is decided in Texas is that the court will look at which parent has been doing those things most of the time, and unless there is a good reason to do otherwise, that parent will be made the primary conservator of the child.

Can a father win custody in Texas? ›

To win custody (or be named as the primary conservator), a father must show that being named the primary conservator would be in the child's best interest or that the mother being named primary conservator would not be in the child's best interest.

Do you have to pay child support if you have 50/50 custody in Texas? ›

It's incredibly rare that a 50/50 agreement doesn't involve child support in Texas because both parents rarely earn the same income. Most likely, there will be some disparity (often a big one) in earnings.

How much back child support is a felony in Texas? ›

After child support payments are enforced at a state or local level, the enforcement may proceed to federal court. If the non-custodial parent still does not pay child support payments in full after two years or the amount has amounted to $10,000, the charge can increase to a criminal felony.

Videos

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