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FAQs

Frequently Asked Questions About Divorce & Family Law

This area provides an introduction to the most common areas of law. Each topical area will contain a general description of the area of law along with a listing of the most frequently asked consumer questions. For your convenience, the descriptions of the legal practice areas, along with all answers to the frequently asked questions, have been prepared in simple, non-legal, plain English. However, every situation is different. For specific information on your situation, please contact one of our attorneys directly.

Texas Family Law - Frequently Asked Questions

  1. Can I still collect child support even if my former spouse lives in a different state?
  2. Can my former spouse file for bankruptcy to avoid paying child support?
  3. Do I need an attorney to file for divorce?
  4. How is child support calculated?
  5. Now long does it take to get a divorce?
  6. Must I get divorced in court?
  7. These options sound difficult, if I can't afford an attorney; can I still get help?
  8. What about the $75 "do it yourself" divorce kits?
  9. What can I do to enforce payment of child support?
  10. What if my, former spouse is missing?
  11. What income is included in the calculation?
  12. What is a common-law marriage?
  13. What is a divorce?
  14. What is a legal separation?
  15. What is a marriage?
  16. What is an annulment?
  17. Who has to pay child support?

1. Can I still collect child support even if my former spouse lives in a different state?

Yes. All states have passed the Uniform Interstate Family Support Act ("UIFSA") or a comparable statute. This act provides for interstate collection of child support. This Act sets up the method for enforcement of support orders where the parties live in different states. Essentially, the party seeking enforcement files a petition in his or her home state. That petition is transmitted to the payor parent's home state and he or she is brought into the court of that state and the court enforces support.

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2. Can my former spouse file for bankruptcy to avoid paying child support?

No. The federal bankruptcy code exempts child support and alimony. Even if a former spouse files for, and receives relief from all debts, the child support obligation will not be relieved.

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3. Do I need a divorce attorney to file for divorce?

No. However, unless your divorce is extremely uncomplicated, and does not involve children or division of substantial property or assets, then using the services of a family law attorney is generally a good idea.

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4. How is child support calculated?

The federal Family Support Act of 1988 requires every state to establish numerical child support guidelines. Every state has "child support guidelines" that applies a percentage to the non-custodial parent's income. It is from this percentage that the child support is calculated.

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5. How long does it take to get a divorce?

The time required to obtain a divorce varies. Generally, a divorce takes anywhere from ten weeks, to a couple of years. The divorce is final as soon as the judge signs the divorce decree. Parties to a divorce may not remarry anyone except each other for 30 days after the decree is granted.

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6. Must I get divorced in court?

Yes, it is still necessary for a person who wants a divorce, to issue a summons against the other person and then to appear in court to give evidence. If the case is not defended, the process is usually fairly quick and uncomplicated, particularly if there are no children and simple proprietary issues.

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7. These options sound difficult, if I can't afford an attorney; can I still get help?

Yes, ask the court to put you in touch with the state agency responsible for enforcement. For most custodial parents, if there is any difficulty in collecting support, it is worthwhile applying for support enforcement services at the local child support enforcement agency. It is usually recommended that the custodial parent have the support paid through the support enforcement agency even if no problems are anticipated as most support enforcement services take care of the necessary record-keeping, provide a neutral third party to report to the court concerning any collection problems, send reminders to the payor parent, send out income executions and automatically undertake many of the enforcement methods without cost to the custodial parent in the event the payor parent does not pay support.

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8. What about the $75 "do it yourself" divorce kits?

Most lawyers really like these kits because they can charge you a lot of money to fix the messes that they have created. Be wary before attempting to utilize such a kit. If you really want to "do it yourself," call your local bar association and ask for a referral to a legal clinic or look in the yellow pages for a "legal support clinic."

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9. What can I do to enforce payment of child support?

There are many child support enforcement devices available in most states. These include wage garnishments, making a negative report to credit reporting agencies, collecting past-due child support from lottery prizes won by the payor parent, intercepting tax refunds due the payor parent from state and federal income tax authorities, seizure of the non-paying parents property, obtaining a court order directing that the payor parent post cash deposit to secure payment of support, obtaining a court order placing the defaulting parent on probation, and lastly, usually where other methods have all failed, obtaining a court order sentencing the defaulting parent to serve jail time.

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10. What if my former spouse is missing?

Many states have a parent locator service. Call your state's support enforcement agency and ask about the parent locator service. If they are not able to help you, you can often locate a missing parent if you know what state he or she resides in simply by asking for a search of the motor vehicle records for that state.

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11. What income is included in the calculation?

In the vast majority of cases, child support is awarded based on reported wages of the payor, as demonstrated by income tax returns and pay stubs.

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12. What is a common-law marriage?

A Texas common-law marriage is one in which there is no ceremony or marriage license. As in the above definition, parties must be capable of contracting and generally be of opposite gender. A Texas common law marriage requires an actual agreement by the two people to act as husband and wife. The agreement may be by words or conduct. In addition, there must also be a "holding out" in Texas of the marital status and cohabitation. This means that the parties must represent themselves in Texas as married to others, such as using the same name, calling each other "husband" or "wife", opening joint accounts or contracting joint debt, filing a joint tax return, etc. If there is a disagreement as to whether or not the parties are married, the person alleging that a marriage exists must prove the marriage by clear and convincing evidence. If the relationship is not initially a common law marriage, because of a lack of contract capacity, the common law marriage may still be created if the couple continues the "marital" relationship after the contract defect is removed.

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13. What is a divorce?

A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing\ the divorce papers with the court. These reasons given are referred to as the grounds for divorce.

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14. What is a legal separation?

There is no such thing as a "legal separation" in Texas. The parties can agree to a post-marital partition and exchange of property agreements, commonly called a "post-nuptial agreement" that provides for maintenance of a spouse in the event of separation.

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15. What is a marriage?

Marriage is defined as a civil contract between two people of the opposite sex, capable of contracting. Generally, to be married, two people must be of opposite gender. However, some states are in the process of changing the different sex requirement. To be "capable of contracting" means that both persons must be of age, or have consent of a parent, and must be unmarried and not divorced within the six months prior to entering the current marriage contract.

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16. What is an annulment?

An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party - usually the party that suffers from the defect.

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17. Who has to pay child support?

Liability is imposed upon both parents. Substantially all states have adopted the Uniform Support of Dependents Law. Under that law, "if possessed of sufficient means or able to earn such means, either or both parents shall be required to pay for child support a fair and reasonable sum as the court may determine."

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