HOW SOON CAN I BE DIVORCED? - Texas law mandates a "cooling off" period of 60 days. In other words, a Petition for Divorce must be on file for at least 60 days before the parties can have a hearing in which they can obtain a divorce. If there are contested issues, the divorce will probably take much longer.

HOW SOON CAN I REMARRY? - Without Court permission to waive the time requirement, after a showing of good cause, neither party to a divorce may marry a third party before the 31st day after the date the divorce is decreed.

DO I HAVE TO FILE DIVORCE IN THE SAME COUNTY IN WHICH I WAS MARRIED? - A divorce petition must be filed in the county where one of the parties is residing and has resided for the statutory period of time.

DO I HAVE TO LIVE IN TEXAS FOR A CERTAIN PERIOD OF TIME BEFORE I CAN FILE FOR DIVORCE HERE? - Yes. One of the parties to the divorce must have resided in Texas for at least the preceding 6 month period prior to the filing for divorce and the petition must be filed in a county where that party has resided for at least the preceding 90 days period prior to filing for divorce.

CAN I FILE FOR DIVORCE ANYWHERE IN TEXAS THAT I WANT? - No. The petition for divorce must be filed in a county where one of the parties reside, subject to the time requirements noted above.

CAN I REPRESENT MYSELF IN A DIVORCE? - A person has the right to represent himself or herself before a court, however the court can hold the party to the same standard of knowledge of the law and procedures that an attorney possesses. Laws can be very complicated. If a person representing himself or herself does not know for certain what they are doing, it is probably advisable to seek the assistance of an attorney. One must remember that just because you decide to represent yourself does not mean that your spouse will do the same thing. In instances where one party is represented by counsel and the other party is not, the party represented by counsel may have a distinct advantage.

WHO HAS TO PAY CHILD SUPPORT? - Technically, both parties pay child support. The party considered to have the primary custody of the child(ren) is presumed to be expending funds to support the child(ren). The other party is typically ordered by the court to contribute funds to this primary residence for the benefit of the child(ren).

DOES MY CHILD SUPPORT PAYMENTS GO INTO THE CHILD(REN)'S ACCOUNT? - No. As indicated above, the funds are paid to the party considered to have primary custody of the child(ren). They are given discretion as to what expenses the child support will pay.

CAN I PAY MY CHILD SUPPORT DIRECTLY TO MY SPOUSE/EX-SPOUSE? - Child support payments are made pursuant to the orders of the court. Most courts now order child support payments to be made to a local registry. This is a good thing as long as the child support payments are being made. The registry will track the payments, so that you cannot be accused of not making payments. However, if you do not make the payments, the local registry works to your disadvantage. The court may presume that if the local registry does not reflect that you made a payment, you didn't. Then it is up to you to prove that you did make the payments. If you cannot prove you made payments, you may be subject to sanctions, including being thrown in jail, loosing occupational licenses and you driver's license.

DOES CHILD SUPPORT BEGIN ONCE I AM DIVORCED? - Technically, child support begins when the court orders you to start paying child support. Under certain circumstances, a person can be ordered to pay "retroactive child support." If this occurs, a person can be ordered to pay child support at a certain rate per month, beginning sometime in the past - often from the time the child was born. This can have serious financial consequences to the person ordered to pay. If a person is asking a court to order you to pay retroactive child support, you probably need to consult with an attorney immediately.

ARE THERE DIFFERENT CLASSIFICATIONS OF PROPERTY? - Yes. Property is classified as either separate property or community property. Texas is a "community property" state. This means that when parties file for divorce, all the property owned by either party is presumed to be owned by both parties. In that instance, it is the responsibility of the person claiming property is not community property to prove that the property is separate property. This becomes important because a judge can divide community property in any manner the judge deems "just and right." Conversely, the judge does not have the right to divide separate property. Separate property belongs to the person found to own it.

WHO GETS TO USE THE PROPERTY WHILE THE DIVORCE IS PENDING? - The Court can make temporary orders that control who has use of particular property pending divorce. This includes property ultimately proven to be separate property. In other words, it is possible that your spouse could be granted temporary use of your separate property house, pending the divorce.

IS THERE ANYTHING THAT CAN BE DONE ABOUT MY SPOUSE HARRASSING, AND/OR THREATENING ME? - It is very important to remember that divorces, custody fights, and the like are very emotional events. Even a person of normal emotional faculties can sometimes do uncharacteristic actions. If a person is prone to violence or emotional instability, a breakup can be a dangerous endeavor. There are mechanisms and organizations which are available to people who are being threatened. The most important thing to remember is that no person has the right to harm another person, especially their own family members. If such a thing is happening, seek help immediately.

CAN I KEEP MY SPOUSE/EX-SPOUSE FROM SEEING OUR CHILD(REN)? - Texas law confers certain rights and certain duties on a parent. the duties include supporting, and protecting one's child(ren). The rights confered on the parent is the right to reasonable possession of and access to the child(ren). These rights and duties are disjunctive. In other words, a parent that does not fulfill his or her duties does not necessarily loose his or her rights to reasonable possession of and access to the child(ren). Normally, the only time a court will limit the reasonable possession of and access to the child(ren) is in instances where it is proven that the child is in physical or emotional danger. If a party unreasonable denys possession of and access to the child(ren), they run the risk that the other party will obtain grounds to limit the denying party's possession of and access to the child(ren).

CAN I BE ORDERED TO PAY CHILD SUPPORT FOR A CHILD THAT IS NOT MINE? - Believe it or not, it is possible. In Texas, a person can be ordered to pay child support, once it is established that they are a "presumed father." It is possible that a person can be a presumed father without being the child's biological father. It is important that these issues be cleared up at or near the time of the ordered child support. It is possible that if a person waits too long, they cannot have a child support order changed, even if it is proven that they are not the biological father. This becomes important when you realize that a child support debt never goes away. It is one of the few debts that cannot be discharged in bankruptcy.

CAN MY NEW SPOUSE ADOPT MY CHILD(REN)? - Yes. This is one of the most common instances when children are adopted. It must be remembered that the other parent's parental rights will have to be terminated prior to the adoption taking place. This is sometimes easy and sometimes not. If the other parent is unwilling to voluntarily relinquish his or her parental rights, it can be difficult, and sometimes impossible to have the adoption completed. This is because some of the most important rights we have, are the rights between parents and their children. If a person is unwilling to give up this important right, they must have done something to justify the court involuntarily terminating their parental rights. Since the family courts liken this to a "death penalty" as far as family court cases go, they require strict proof of the elements required to involuntarily terminate parental rights.

CAN I ADOPT MY GRANDCHILD(REN)? - An adoption can be granted by a court if the technical elements are proven and the court determines that the adoption is in the best interest of the child(ren). Some courts have no problem allowing grandparents to adopt their grandchildren, and some courts believe that there is no necessity, since a grandparent can be named managing conservator of the child(ren). An argument can be made that the Family Code specifically alludes to the ability of a grandparent to adopt their grandchildren.

The Macey Law Firm, P.L.L.C.

Beaumont mailing address: (meeting with lawyer is by appointment only)

465 Blanchette
Beaumont, Texas 77701
Telephone (409) 835-7899 • Fax (409) 833-7623
Houston: (832) 647-4411
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Beaumont and Houston area divorce, child custody, criminal defense, guardianship, probate, heirship and estate administration attorney John E. Macey represents individuals and families in the Southeast Texas area in communities such as Beaumont, Port Arthur, Nederland, Port Neches, Groves, Orange, Vidor, Lumberton, Kountze, Silsbee, Evadale, Sour Lake, China, Hamshire, Fannett, Winnie, Sabine Pass and Houston.

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