Divorce & Annulment                Frequently Asked Questions

Divorce & Annulment Questions

   2) Under What Circumstances Can a Marriage be Annulled?

   4) How Long Must I Live in Texas before I can be Divorced Here?

   6) I or My Spouse is in the Military.  Can I still receive a divorce in Texas?

   8) What are the Requirements to be Common Law Married?

   10) Will My Name be Changed in a Divorce?

   12) Can Alimony be Awarded in Texas?

   14) What are the Requirements to Receive Spousal Maintenance?

   16) Is it Possible for a Young Person to be Married?

Child Support Questions

   17) How much Child Support should a Parent be Paying?

   18) What does the Court Consider in Awarding Child Support?

   19) What do the Statutory Guidelines of the State Say a Parent Should Pay?

   20) My Spouse is Very Wealthy.  Can I receive more Child Support?

   21) What if a Parent Paying Child support is Supporting another Family?

   22) For How Long Must a Parent Pay Child Support?

   23) What Parent Must Pay for the Child's Health Insurance?

   24) What Should I do if I am not Receiving my Child Support Payments?

   25) Can I Claim my Child on my Income Tax Return?

Child Custody Questions

   26) What is the difference between a Sole Managing Conservator & Possessory Conservator?

   27) What Rights does a Possessory Conservator Have?

   28) What Rights does a Sole Managing Conservator Have?

   29) How Does the Court Determine which Parent to Appoint as Managing Conservator & which to appoint as Possessory Conservator?

   30) I am a Father.  Does that mean I will not get Possession of my Child?

   31) I have more than one Child.  Is the Court going to split them up?

   32) Can a Child Decide where he Lives?

   33) If I am not Awarded Custody, how much will I be able to Visit my Child?

   34) What if I Cannot Pay Support, Will I be Denied Access to my Child?

Modification Questions

   35) When Can a Child Support & Custody Order be Modified?

   36) I Cannot Afford to Pay my Support, Can it be Modified so I can Pay Less?

1) What is the Difference between Divorce and Annulment?

Divorce requests the end of an otherwise valid marriage.  Annulment requests an invalid marriage to be declared invalid. 

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2) Under What Circumstances Can a Marriage be Annulled?

A marriage can be annulled if that marriage is void or voidable.  A marriage is void or voidable under the following circumstances-

• Underage Marriage- a child between the age of 14-18 married without court approval or parental consent;

• Drugs or Alcohol Involved- Marriage took place while person was under influence of drugs or alcohol and they did not have the capacity to consent;

• Impotence- Either party is permanently impotent and the innocent party did not know this at the time of the marriage;

• Fraud or Force- One party used fraud, duress, or force to induce the other party into marriage;

• Mental Incapacity- Marriage took place while one party did not have the mental capacity to consent;

• Marriage within 30 Days of Divorce- the Marriage took place within 30 days of either the husband or wife receiving divorce from an ex-spouse.  So, a divorcee cannot marry another person within 30 days of their divorce.  If violated, the second marriage is voidable.

• Marriage within 72 Hour Waiting Period- the Marriage took place within 72 hours after the marriage license was issued.

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3) How Long Does a Divorce Take?

Texas law requires at least 60 days for a married couple to be divorced.  Generally, most divorces take between 80-200 days to complete.  No waiting period is required for an annulment. 

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4) How Long Must I Live in Texas before I can be Divorced Here?

That depends.  Texas has a residency requirement that must be met before a party is granted a divorce in Texas.  A person seeking a divorce must have lived in Texas for at least 6 months and also lived in the county in which they are seeking a divorce for 90 days. 

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5) Does Texas Allow 'No Fault' Divorces?

Yes, a divorce may be granted without regard to fault if it has become insupportable because of discord or conflict.  This is by far the most common form of divorce in Texas.

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6) I or My Spouse is in the Military.  Can I still receive a divorce in Texas?

Yes, a person in the military may still be divorced as long as the or their spouse have been in Texas for 6 months and in the county for 90 days.  If a person in the military is stationed overseas, they may still receive a divorce in Texas.

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7) Does Texas Recognize Common Law Marriage?

Yes, Texas Law does recognize common law marriage. 

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8) What are the Requirements to be Common Law Married?

Under Texas law, to establish that a common law marriage exists, the parties must establish three things-

1. Agreement to Be Married- the parties must establish by the evidence that they agreed, amongst themselves, that they would be married;

2. Cohabitation- the parties must have lived together; and

3. Telling Others that they are Married- the parties must tell other people that they are husband and wife, or somehow hold out to others that they are married.

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9) Is it Possible to Receive a Restraining Order Against my Spouse?                  Yes.  the court may issue a temporary restraining order to prevent a variety of harassing actions (i.e. threats, phone calls, falsifying records, etc.).  The court may also issue a temporary injunction that could deal with a a variety of issues such as ordering one spouse to pay they attorney's fees of another spouse, awarding one spouse exclusive occupancy of a residence, etc.

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10) Will My Name be Changed in a Divorce?                                                              If you want it changed, yes.  Either party may petition the court for a change of name in the divorce decree.  The court may not deny this simply to keep the names of family members the same.

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11) I am Pregnant.  Can I still get a Divorce?                                                              No.  You can file for divorce when you are pregnant, but the divorce cannot be finalized until the child is born.

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12) Can Alimony be Awarded in Texas?                                                                  No.  Texas law does not allow the court to order alimony to be paid.  However, the parties to a divorce may agree amongst themselves that alimony will be paid as part of a divorce agreement and the court will place this in the order.

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13) What is Spousal Maintenance?                                                                 Spousal Maintenance is the Texas alternative to alimony.  It is intended as a temporary rehabilitative measure for a spouse whose ability for support themselves is lacking.

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14) What are the Requirements to Receive Spousal Maintenance in a Divorce?   The Court may order spousal maintenance only if:

1. Marriage was 10 years or longer. (or spouse convicted of family violence w/in past 2 years)
2. Spouse seeking maintenance lacks sufficient property to meet her minimum reasonable needs; and
3.  Spouse seeking maintenance cannot support herself or is caring for a disable child.

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15) How is Marital Property Divided in a Divorce?                                                   In a divorce, each spouse is entitled to their own Separate Property.  Separate property, simply put, is property that a spouse possessed before they were married and property that a spouse has inherited.  The court cannot divide the separate property of  a spouse.

However, the Community Property of a married couple is subject to a "just and right division" of the court upon divorce.  Community Property is all other property of a marriage other than Separate Property.  This includes wages and income from separate property. 

Obviously, every divorce is different so a "just and right division" can differ from case to case.  There are also many other rules and this issue can get a bit complicated.    

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16) Is it Possible for a Young Person to be Married?                                             Yes, but that young person must first obtain parental consent or the consent of the court. A marriage license may not be issued if either person is under age 18, unless-

• Parental Consent- the person is between the ages of 14 and 18, and has notarized parental consent that was made within the past 30 days; or
• Court Order- a court may give its consent for a young person to marry if it finds it in the best interest of the young person.

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17) How much Child Support should a Parent be Paying?

A person should be paying the exact amount of child support that it states in the child support order handed down by the court.  However, the State of Texas has set out statutory guidelines that help the court to determine the proper amount of support that should be paid.  The court is also allowed to consider other factors when deciding how much support to award.  There is a presumption that a support order tied to these guidelines are in the best interest of the child.  

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18) What does the Court Consider in Awarding Child Support?

The Court considers-

1. Needs of the Child;

2. Ability of Parents to Contribute;

3. Financial Resources of Parents Available;

4. Amount of Possession and Access to Child; and

5. Statutory Guidelines of the the State.

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19) What do the Statutory Guidelines of the State Say a Parent Should Pay?

The statutory guidelines state that a parent with the following number of children should pay-

1. 1 Child- 20% of Paying Parents Net Pay

2. 2 Children- 25% of Paying Parents Net Pay

3. 3 Children- 30% of Paying Parents Net Pay

4. 4 Children- 35% of Paying Parents Net Pay

5. 5 Children- 40% of Paying Parents Net Pay

6. Over 5 Children- Not less than 40% of Paying Parents Net Pay          

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20) My Spouse is Very Wealthy Can I Receive More Child Support?

No.  The guidelines only apply to the first $6000 of net earnings per month of a paying parent.  If the person makes more than that a month, the court could order more.  But, the fact that the parent earns a whole lot of money does not justify deviation from the support guidelines- only the needs of the child justify such a deviation

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21) What if a Parent Paying Child support is Supporting another Family?

All children of the paying parent are taken into account. So, the fact that the paying parent must support another family is taken into account.

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22) For How Long Must a Parent Pay Child Support?

A parents duty to pay child support continues until the latter of the child finishing high school or turning 18. 

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23) What Parent Must Pay for the Child's Health Insurance?

Generally the parent who pay's child support must also pay for the child's health insurance.  If health insurance is available to the child through that parent's employer or through another organization at a reasonable cost, the court must order that parent to pay for health insurance for the child.

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24) What Should I do if I am not Receiving my Child Support Payments?

There are many ways to enforce a child support order.  If you are not receiving your child support because the other parent is not paying you, there are a variety of ways you can force them to do so.  Some of them include-

• Withholding the child support from their earnings;

• Hold them in contempt of court;

• Suspend their license (drivers license, hunting license, professional license, etc.)

• Create a judgment for child support arrearages.

The last thing you should do is to just accept that someone is not paying support.

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25) Can I Claim my Child on my Income Tax Return?

You should look to the court order in the final divorce decree in order to clarify who may claim the child on their Income Tax Return.  Generally, the parent who has custody of the child may claim them on their return.

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26) What is the difference between a Sole Managing Conservator & Possessory Conservator?

A Sole Managing Conservator is a parent that is awarded custody of the child.  The Possessory Conservator is the parent that only has visitation rights.

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27) What Rights Does a Possessory Conservator Have?

A Possessory Conservator is a parent without custody, but has visitation rights.

The Court must specify in its order what rights and duties each parent has, but generally, both parents have the right to-

1. Access to Records- right to have access to medical, psychological, and education records;

2. Talk to Teachers & Attend Functions- right to consult w/ school officials and attend school activities;

3. Notified in Emergency- right to be notified in an emergency; and 

4. Manage Estate Created by That Parent- the right to manage the child's estate to the extent it was created by that parent.

Furthermore, during the Possessory Conservator's period of possession, he has the right to-

1. Religious Training- direct the religious training of the child;

2. Care, Control, & Discipline- the duty of care, control, and discipline of the child;

3. Support- the duty to support the child; and

4. Right to Consent to Non-Invasive Care- the right to consent to non-invasive medical and dental care for the child.

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28) What Rights does a Sole Managing Conservator Have?

The Court must specify in its order what rights and duties each parent has, but generally, the Sole Managing Conservator has the right to-

1. Residence- designate child’s primary residence

2. Services & Earnings- any services and earnings of the child;

3. Education Decisions- make decisions concerning the child's education;

4. Marriage & Military- the sole right to consent to the right of the child to marry or enlist in the armed forces;

5. Medical Treatment- the sole right to consent to medical and psychological treatment;

6. Child Support- the sole right to accept child support payments; and

7. Legal Action- the sole right to represent the child in legal actions and make legal decisions for them.

Furthermore, during the Sole Managing Conservator's period of possession, he has the right to-

1. Religious Training- direct the religious training of the child;

2. Care, Control, & Discipline- the duty of care, control, and discipline of the child;

3. Support- the duty to support the child; and

4. Right to Consent to Non-Invasive Care- the right to consent to non-invasive medical and dental care for the child.

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29) How Does the Court Determine which Parent to Appoint as Managing Conservator & which to appoint as Possessory Conservator?

The court looks to the following factors in determining whom to appoint as Managing Conservator-

1.  Best Interests of the Child (by far the most important)

2.  Wishes of the Child

3.  Emotional and Physical needs of the child

4. Emotional and Physical dangers to the child

5. Parental Abilities

6. Stability of Home Environment

7. Any Bad Acts committed by a parent

8. Evidence of past Domestic Violence; and

9. Evidence of false reports of child abuse.

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30) I am a Father.  Does that mean I will not get Possession of my Child?

No.  Texas law does not allow courts to take into account gender or marital status when considering whom to appoint as sole managing conservator.  However, the mother of the child is often always appointed as sole managing conservator of the child with the right to determine the child's residence.

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31) I have more than one Child.  Is the Court going to split them up?

Most likely not.  When a couple has two or more children, there is a strong preference that they not be divided unless there are clear and compelling reasons to do so.  

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32) Can a Child Decide where he Lives?

Generally, No.  However, a child 12 or older may file an affidavit with the court naming the parent with who he wishes to reside.  This is subject to court approval. 

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33) If I am not Awarded Custody, how much will I be able to Visit my Child?

The Court must specify in its order what visitation schedule the parents must follow, but generally, the parent that is not awarded possession of the child will be allowed to have custody of the child on the following occasions-

•  6pm Friday-6pm Sunday on 1^st , 3^rd , and 5^th weekends of the month;

• 6pm-8pm every Thursday during the school year; and

• One Month during the Summer.

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34) What if I Cannot Pay Support, Will I be Denied Access to my Child?

No, a support order cannot condition the right of access to the child on payment of support.

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35) When Can a Child Support & Custody Order be Modified?

A Child Support & Custody order may be modified only by filing a motion to modify the order in the court that originally gave the order.  The court will only allow such a motion if it is in the Best Interests of the Child, and then only under the following circumstances-

• Changed Circumstances- circumstances of child or parent have materially and substantially changed (most common);

• Child Requests Change- a child 12 or older requests a change; or

• Relinquishment of Possession- the parent with custody of the child has relinquished possession of the child for 6 months.

You cannot agree with your ex-spouse to modify the child support order.  It must be modified by the court.

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36) I Cannot Afford to Pay my Support, Can it be Modified so I can Pay Less?

Most likely, Yes.  As long as a person can show that their circumstances have changed making it impossible to pay their support, the court will almost always allow a modification of support downward.