Texas is now a "no fault" state, meaning that a person desiring a divorce does not have to prove that his/her spouse is at fault in the marriage. The most common grounds for divorce is that "the marriage has become insupportable because of discord or conflict of personalities between you that has destroyed the legitimate ends of the marriage." However, there are several other possible "fault" grounds for divorce which a person may use, including adultery, cruelty, conviction of a felony, abandonment, living apart, and confinement in mental hospital. Sometimes a client will want to file for divorce and use a fault, such as adultery. I always try to talk them out of it. Well over 99% of all divorces are settled by agreement, and it's just harder to reach an agreement with someone when you have called them names in public.

Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.

There are several Federal and state laws that benefit married couples. Some examples include the right to:

• File joint income tax returns with the IRS and state taxing authorities
• Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)
• Create a marital life estate trust
• Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits
• Receive a share of your deceased spouse's estate under intestate succession laws
• Claim an estate tax marital deduction
• Sue a third person for wrongful death of your spouse and loss of consortium
• Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states)
• Receive family rates for insurance
• Avoid the deportation of a non-citizen spouse
• Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family

An agreed divorce happens when the married couple can agree on every aspect of the divorce including who gets what stuff and what the possession (visitation) schedule for the kids will be. They get together and decide all this and then get a lawyer to draft an agreed decree. The husband and wife both sign it. The lawyer and the client go to court one morning and prove up the divorce. The client and lawyer go before a family court judge and the lawyer asks the client a standard list of questions regarding the marriage, the kids and the agreed decree. If all is in order, which it should be, the judge will sign the decree granting the divorce right then and there.

An agreed divorce happens when the married couple can agree on every aspect of the divorce including who gets what stuff and what the possession (visitation) schedule for the kids will be. They get together and decide all this and then get a lawyer to draft an agreed decree. The husband and wife both sign it. The lawyer and the client go to court one morning and prove up the divorce. The client and lawyer go before a family court judge and the lawyer asks the client a standard list of questions regarding the marriage, the kids and the agreed decree. If all is in order, which it should be, the judge will sign the decree granting the divorce right then and there.

A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, a divorce will give each person the legal right to marry someone else. It will also legally divide the couple's assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of "no-fault" divorce laws that can significantly simplify the divorce process.

Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases, the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no-fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.

A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.

There is a sixty-day waiting period from the date the divorce suit is filed with the county clerk until a court will grant the divorce. Of course, if the parties are not in agreement on the terms of the divorce, it probably will take longer to get the divorce accomplished.

There are a few ways, but before you decide to go it on your own, try to find a way to afford an attorney. This is especially true when your spouse has an attorney. If you go into court on your own (pro se) then you are still bound to know and follow all the laws and rules such as the Rules of Civil Procedure and Evidence. Borrow money from a relative. Get some community money out of the bank or other source. Put the attorney's fees on a credit card.

If all that fails, then try to find some good legal forms. Try a book store or online at Amazon.com to find form books for Texas divorces. Read some other divorce books as well. Half-price Books is a good source. The Tarrant County Law Library is open to the public and has resources for do-it-yourself divorces. They cannot and will not provide legal advice. The law library also maintains a list of free and low cost legal clinics that may be available to you if you qualify (usually the client must be indigent).

Also try the Attorney General's Child Support Division office in Fort Worth to see if they can help get child support established. The AG would not represent either spouse, but will help get child support or establish paternity. You could also try to go to a mediator (either a lawyer who mediates or some other type) to work out the terms with your spouse, and then use forms to draft the decree. Remember that a Qualified Domestic Relations Order is required if you will be splitting a retirement plan. Forms for QDROs can sometimes be obtained from the employer who administers the plan.

Not usually. In agreed divorces, most couples agree that each will pay their own attorney. The courts also seem prone to require the parties to pay their own attorneys' fees. Of course, you can sometimes get the court to dip into the community property to pay the fees to your attorney during the pendency of the divorce. But the court may also equalize the fees between the attorneys so that your spouse will also be able to draw out community funds to pay his or her attorney.

Collaborative Divorce is when you and your spouse really don't want to go to war, but can't reach an agreement without help, or if the situation is complicated enough that both sides need lawyers or other experts, Collaborative Divorce makes divorce less combative and more cooperative. Most of the work in reaching an agreement is through a series of "4-way" meetings of both spouses and both lawyers. In order to assure that everyone remains committed to reaching a peaceful settlement, the lawyers will sign agreements that if the client decides to go to trial (that is, to break off the settlement effort), the lawyer must withdraw and the client must find a new lawyer.

The parties agree to provide each other with all the information necessary for everybody involved to work toward a win-win settlement. Because the parties voluntarily provide the information, there is less hostility in trying to compel the other side to do something. The lawyers change roles from preparing for trial into facilitating a settlement.

Collaborative Divorce may or may not include mediation. If the parties reach an agreement without mediation, then, of course, mediation is not necessary. However, if the parties are unable to reach an agreement, it may be useful to schedule a mediation to help the parties settle. If they do not settle by the end of mediation, then all that is left is trial. In Collaborative Divorce a trial may only be reached if both parties fire their lawyers and hire new counsel, allowing a reasonable time for the new lawyers to get up to speed. This provision guarantees that the Collaborative Divorce lawyers will do everything they can to get the parties to settle without going to trial.

No. Don't do it. It will complicate the divorce and may anger your spouse so much that he or she will not be as easy to deal with as they might have been prior to your dating. In addition, the spouse may assert that you are committing adultery and may bring that up in your divorce case. That could lessen the amount of money and assets you recover in the divorce. Besides, it is very confusing for the children for you to start dating that soon after separating.

In divorce, the name change is properly called a "restoration of former name." If the name change is not at time of divorce, or is not to a former name, other rules apply, and is a separate lawsuit, with additional fees and costs. The restoration of former name can be done by simply adding a paragraph to the proposed divorce decree, and supported by brief sworn testimony at the time the divorce is "proved up" that (1) this is a change to a previous name; (2) the name change is not sought to avoid criminal prosecution; and (3) the name change is not sought to avoid creditors. There is usually no additional charge for this type of name change, and can be easily accommodated if you just notify your attorney while you are drafting the decree.

Caution: Whether in a divorce or for other reasons, the judge will usually try to talk a parent out of changing his or her last name if it results in the child having a different last name from the parent. The judges see children fairly frequently who wish they had the same last name as their parents.

Some states have legal separation. Texas doesn't. In Texas, you're married or you're not. Usually this comes up in the context of protecting oneself from debts incurred by the other spouse while a divorce is contemplated. While Texas is a community property state, there is no such thing as community debt. However, debts incurred during marriage may be satisfied by taking away community property under the control of the other spouse, such as a paycheck. If you are concerned about a spouse running up bills, your best solution is a divorce as quickly as possible.

No. You can't file for a separation, only for a divorce. If you file for divorce, you should be able to get temporary orders from the court soon after filing to cover issues like who gets to live in the house, what the visitation schedule with the kids will be, and how much temporary child support and spousal support will be paid. The temporary order remains in effect until changed by the court or superseded by the final divorce decree. Sometimes temporary orders remain in effect for a year or more when the couple has difficulty agreeing to the terms of the divorce.

Texas law does provide some basis for an annulment instead of a divorce, but cases in which the facts fit the law are extremely rare, so these cases almost always wind up as divorces. Annulment statutes are based on some sort of trick or deception at the time of marriage, and also require that the parties have not lived together since the trick or deception was discovered. An annulment may be had:

• if one of the spouses is under 14 years of age
• if one of the spouses is under 18 years of age and no parental consent was obtained before the marriage
• if the person asking for annulment was under the influence of alcohol or narcotics at the time of marriage, and has not voluntarily cohabited with the other party since the effects of alcohol or narcotics have ended
• if one of the spouses was permanently impotent at the time of the marriage, the person asking for annulment didn't know about the impotence at the time of marriage, and the person asking for the annulment has not voluntarily cohabited with the other party since learning of the impotence
• the other party used fraud, duress, or force to induce the petitioner to enter into the marriage, and the petitioner has not voluntarily cohabited with the other party since learning of the impotence
• lack of mental capacity
• concealed divorce less than 30 days before the marriage sought to be annulled (and no cohabitation since)
• if the parties married less than 72 hours after the marriage license was granted and an annulment suit is filed less than 30 days after the marriage

Similar to an annulment, a marriage may be declared void if: the parties are too closely related to one another (ancestor or descendant by blood or adoption; brother and sister of whole blood, half blood, or adoption; uncle/aunt by whole blood, half blood or adoption; a first cousin by whole blood, half blood, or adoption) bigamy (one of the parties married at time of this marriage).

A divorce must be filed in a county where one or both of the parties have lived for at least 90 days. While an attorney licensed to practice in Texas may practice in any county, for practical reasons, you'll need to hire an attorney who has an office in that county. In a state as big as Texas, it's simply not cost-effective for most people to hire an attorney in one part of the state when the divorce must be filed in another part. A brief appearance with travel time in the lawyer's home county may take only one billable hour (at $100 to $250 and up per hour), while the same appearance in an adjacent county would take 3 billable hours, or as much as 16 billable hours in a remote part of the state, plus travel expenses to be billed to the client.

Mediation is a settlement conference which is run by a person whose only job is to help the parties reach an agreement. The mediator cannot simply announce the terms of divorce, as an arbitrator could. The mediator cannot force anyone to do anything, and all proceedings are confidential.

Because judges view mediation as a "good thing," and because cases that settle do not clog up the courts dockets with trials, you should expect your case to be ordered to mediation. If you reach an agreement before the mediation date, you will not have to pay for the mediator or for my fees attending mediation. But you cannot get to trial without at least trying mediation first. And it always surprises me how often parties that I thought were heading for trial were able to reach an agreement at mediation.

The old system of Texas law refers to Managing Conservators and Possessory Conservators. The Managing Conservator is the person who has the child most of the time and makes most of the important decisions about the child. The Possessory Conservator(s) is/are the person(s) who only have possession of the child, although they may be able to make emergency decisions in the absence of the managing conservator.

The legislature amended the law to provide for Joint Managing Conservators. This augments rather than replaces the old system. Parties may choose (or courts may decide) whether to use the Managing/Possessory Conservatorship scheme or to appoint Joint Managing Conservators. Joint Managing Conservatorship is presumed to be in the best interests of the children.

Under a Managing Conservator/Possessory Conservator scheme, the rights and responsibilities of each party are clearly laid out in the Family Code. But under a Joint Managing Conservatorship, there is a list of rights and responsibilities that must be allocated among the parties. Each JMC is custom-made. It can look exactly like a Managing Conservatorship with a new label, or it can be a dramatically different arrangement.

When parents cannot reach an agreement regarding child custody, most courts try to decide custody based upon an analysis of what arrangement is in the best interests of the child. While statutes and standards differ from state to state, a best interests determination is usually reached by reviewing parental wishes, the mental and physical health of the parents, any history of domestic abuse, review of the child's age and attachment to the parent that has been the primary caretaker, and the child's wishes depending upon the age of the child and the motivation for the preference.

The legislature has established what is called the "Standard Possession Order." It is set forth in the Texas Family Code, and provides for the person who does not have the children living with him or her to have possession of the children on the 1st, 3rd and 5th weekends of each month, plus Wednesday evenings during the school year and a month in the summer. The extended possession adds pickup at school when school gets out before the weekend, and an overnight on Sunday and Wednesday nights. A couple can also agree to a different schedule, such as every other weekend, or one week with mom and the next with dad.

Development experts agree that children of different ages have different needs regarding visitation scheduling. Experts generally recommend the following schedules, which may need adjustment for parents with either outstanding or limited parenting skills.

• Birth to 8 months: 2 or 3 weekly visits of 2 to 3 hours each.
• 9 to 12 months: 2 or 3 weekly visits of 4 to 8 hours each with one possible overnight weekend visit of 10 hours.
• 13 months to 3 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24-hour weekly overnight weekend visit.
• 4 to 5 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24 hour weekly overnight weekend visit and the beginning of vacation (three 2 day visits per year).
• 6 to 8 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Allowances should be made in the schedule for "homesickness" that allows children to return to primary parent as needed during longer visitation times.
• 9 to 12 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally.
• 13 to 17 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Teenager should be consulted for modifications consistent with other activities.

When parents enter into a shared parenting arrangement, the Children's Right Council recommends the following custody schedule.

• Under 1 year. Part of each day with parent.
• 1 to 2 years. Every other day with each parent.
• 2 to 5 years. No more than two days without seeing a parent.
• 5 to 9 years. Each parent takes alternate week with off-duty parent getting mid-week visitation.
• Over 9. Alternate weeks.

Let's assume an example: the children live with their mother, and the father has certain rights to be with the children. Mother has the right to determine the residence of the children. Father is concerned that Mother will move to Butte, Montana (or Alpine, Texas) and the time, expense, and inconvenience of exercising possession of the children will be so great that he will only be able to see the children during summer possession and Christmas. The courts share this concern.

Some courts, especially in Dallas, will automatically impose a domicile restriction if there is not one stated in the proposed divorce decree. At least one court has a rubber stamp specifically for this purpose. The courts in Collin County are not routinely imposing domicile restrictions when neither party has asked for it, but when one side has asked, they tend to be sympathetic.

The two most common domicile restrictions are (1) to the county of the divorce, and (2) to the county of divorce and any county contiguous to (touching) the county of divorce. That is, either to Collin County, or a provision restricting residence to Collin, Dallas, Denton, Grayson, Fannin, Hunt, or Rockwall Counties.

A divorcing couple can usually agree to have any domicile restriction they want, or to have no domicile restriction. I have done one divorce where the domicile of the child was restricted to the State of Texas. I have had several with the domicile restricted to Plano Independent School District. I have had one divorce where the parties agreed that the domicile would be restricted within the Plano Independent School District to the attendance zone for XXX elementary school until the child started 6th grade, when it would be restricted to the attendance zone for YYY middle school, and so on.

The possessory conservator will be ordered to pay support based on the judge's decision as to what is in the best interest of the child. The judge may consider a number of factors, but the Texas Family Code provides a formula that calculates a support figure that is presumed to be in the best interest of the child. Some judges require overwhelming evidence to deviate from the statutory guidelines.

The basic formula is fairly simple, and it works in most situations. It needs adjustment, perhaps significant adjustment, if a child has special needs, if the person paying child support also has children by another relationship, or if the person paying child support has resources other than employment (such as a trust account, or other income). Generally, the earning potential of the person receiving child support is irrelevant, as is the income of the new spouse of the person paying child support.

Assuming none of the special circumstances above apply, one takes the monthly gross income of the person paying child support, deducts the required deductions for income tax and social security, and winds up with a net number. The Texas Attorney General produces tables annually to assist in this calculation. Note that there are separate charts for employed persons and for self-employed persons. If the net figure is more than $6,000, one normally would reduce the net figure to $6,000.

Again, assuming no special conditions apply, one takes 20% of the net for supporting one child, or 25% for two children, 30% for three children, 35% for four children, etc. Calculation of support becomes more complicated when a person owes support to two or more different ex-spouses. However, the maximum child support a person can be required to pay is 50% of net resources.

Child support is determined almost entirely by a chart and formula that the Texas legislature has established. Generally, if you have two children for whom you are paying support, you will have t o pay 25% of your net resources (that is gross income less some deductions for taxes and for union dues or health insurance costs for the children) for child support.

Each state has child support guidelines in place that are used as the foundation for determining the amount of child support owed. While guidelines vary from state to state, courts setting child support orders will generally follow the amount suggested by the guidelines unless a reason to depart from them exists. Most guidelines factor in at least some of the following:

• The needs of the child;
• The relative abilities of the parents to pay support; and
• The standard of living the child would have had but for the divorce.

Guidelines determine the amount of child support that will be paid in almost every case. Courts use the guidelines issued by the Texas Attorney General's Office, Child Support Division. Variations from the guideline amount are rare. When the obligor (person who pays support) has 2 children, guideline support is 25% of the obligor's net income. The obligor is the person who will be paying the support. The net income is determined by a chart issued by the Attorney General of Texas, Child Support Division, using the net monthly gross and subtracting the social security, Medicare and federal income tax for a single person with one exemption. The cost of supplying health insurance will be deducted from net resources prior to application of the percentage. The chart is available at the Attorney General's web site. Please see the links page of this site for a link to the AG site.

Yes. Both of a child's biological parents owe that child a duty of financial support. You can work with an experienced family law attorney and/or your state's Child Support Enforcement office to obtain a support order. Don't be surprised if the person you name as the father initially contests paternity and asks for a DNA test. Once paternity has been established a support order will be entered.

Yes. Money the obligor receives from any source, including bonuses and dividends from investments, is included as income. Even if one received a bonus last year and may not receive it this year, the court will often use the prior year's W-2 and Federal Income Tax Return to determine the child support amount.

If your order establishing child support states that your obligation decreases when one child reaches 18, and states the stepped-down amount for the child support, then your child support will decrease to the stated amount. That decrease must also be stated in your wage withholding order which is issued at the time the child support order is put in place. Be sure that your order is written to include the step-down at the time of the divorce or the order being put in place.

Six per cent.

Tarrant County requires that all child support payments be made through the State Disbursement Unit in San Antonio, Texas. This is a relatively new requirement.

No. The person receiving the support has no obligation to account to the person paying regarding how the money gets spent. It may be used for any purpose.

Yes. The two issues, child support and visitation, are entirely separate according to the law. A parent may not withhold the children because the child support is not being paid. Likewise, a parent may not withhold child support because visitation is not being allowed.

No. Child support amount does not increase or decrease automatically. The amount of child support only changes when a court modifies the order. If one would like to have the amount increased, the only way to do that is by filing a motion to modify with the court. The modification will only be granted if the new income amount is proved.

No. See the answer to 'If the paying party's salary increases, does the child support increase?', which applies in this circumstance as well. The key point to remember is that if you want the child support amount to change, you must do that through the courts.

No. Tempting as it may be to tie visitation to child support payments, they are separate considerations. Though lack of support can be financially devastating, it really is not in your child's best interests to make time with their other parent contingent on payment and doing so may subject you to legal difficulties if there is a court ordered visitation plan. Similarly, you may not stop paying child support if visitation is denied. If your child support is seriously behind, you should contact an experienced family law attorney or your state or county's child support and enforcement office.

In any proceeding in which child support payments are ordered, the court must order that income be withheld from the disposable earnings (out of their paychecks) of the person who is obliged to pay child support. That means that the employer of the person who pays, is ordered to withhold the amount necessary to pay the monthly child support from each paycheck or whatever paycheck and withholding schedule is set up. The parties can agree not to file the order with the employer, and can file it later if the person who is obliged to pay stops paying.

Texas has long had "contractual alimony" where the parties agree to alimony. There are any number of reasons why the parties may agree to alimony, but the most common is that it is difficult to divide the community property without alimony. For example, most of the community property estate is tied up in a single large asset which the parties cannot or do not wish to liquidate, such as a house or a retirement plan. In order to compensate the other party for their fair share of the asset, the person receiving the asset may agree to make periodic payments to the other party. Although this can be done simply as a promissory note, making it as alimony has some advantages. If it can pass muster as "in the nature of support" according to IRS guidelines, it is a debt that must be paid, and cannot be discharged in bankruptcy, and it also is tax deductible to the person making the payments.

In 1995 Texas became a limited alimony state, meaning that the court could order alimony even if the parties didn't agree to it, but it was limited in a number of ways. Normally, the parties must have been married for at least 10 years, and the party to receive child support needs education or training to be able to support herself or himself. Normally the court may order alimony for no more than 36 months, and the monthly amount is the lesser of $2500 per month or 20 percent of the spouse's average monthly gross income.

No. Texas does not have alimony. Texas has maintenance, which is defined in the divorce context as court-awarded periodic payments from the future income of one spouse for the support of the other spouse. It doesn't get awarded very often. The court determines the nature, amount, duration and manner of payment by considering relevant factors including those listed in the Family Code: financial resources of the spouse seeking maintenance, education and employment skills, duration of the marriage, age, earning ability, and physical and emotional condition of the spouse seeking maintenance, ability of the spouse who is asked to pay to meet his or her own needs, excessive or abnormal expenditures by either spouse of community property, comparative financial resources of the spouses, property brought in to the marriage, contribution of the spouse as a homemaker, marital misconduct of the spouse seeking maintenance and the efforts of the spouse seeking maintenance to find employment. The Family Code discourages judges from having the maintenance payments continue for more than three years unless the receiving spouse is disabled. Couples sometimes provide for maintenance in their agreed decree in a settlement so that the Family Code limitations on maintenance don't limit the amount or duration of maintenance payments.

This is an extremely complex and detailed issue, and you should consult an attorney for a better answer. However, there are some guiding principles and guidelines that may be helpful. In an agreed divorce, which is most divorces, the property is divided according to whatever terms are agreed to by the parties. However, the parties will agree based upon what they think is likely to happen if they go to trial and ask the court to divide the property.

First, Texas is a Community Property state, and as a general rule, only the community property is subject to division at time of divorce. Community property is all property acquired during the marriage except that acquired by gift or inheritance. The court cannot generally divide separate property, but it can consider separate property when deciding on a just and right division of community property.

The divorce court is supposed to make a "just and right" division of the community property. This does not mean 50/50, although that is where most courts start before they begin hearing evidence.

In making a just and right division of property, the Court may consider a number of factors, including fault in breakup of the marriage, relative earning capacity of each spouse, the needs of any children, and other factors.