Resources

Q. What is a divorce?

Divorce is legal process that results in the dissolution (ending) of a marriage.

Q. What is the difference between a “fault” and “no fault” divorce?

In Texas, divorce can be granted on grounds of fault or no fault. A fault divorce is where a party alleges and proves their spouse was to blame for the breakdown in the relationship (e.g. – adultery). A no fault divorce is where the parties don’t allege either is to blame for the divorce, but rather the divorce is because of irreconcilable differences.

Q. During the divorce process, can the spouses still live together?

Yes, spouses may still cohabitate during the divorce process. Frequently, especially due to financial reasons, spouses will continue to live together while going through the divorce.

Q. Can I make my spouse leave our residence during the divorce process?

If your spouse will not agree to vacate the marital residence, then you will have to ask the court to order it. It is common for one spouse to have the temporary right to occupy the marital residence during the divorce. But, in order to get that right, the judge must decide that your spouse must vacate the residence.

Q. What if my spouse does not want to get divorced?

Even if your spouse wants to stay married, you can still get a divorce. However, if one spouse is not mentally ready for divorce, that can impact the length of time it takes to get divorced.

Q. How long will it take for my divorce (or other family law case) to get completed?

This is a very frequently asked question, but one of the hardest questions to answer. We know for sure that your divorce case will take at least 60 days, as that’s the mandatory waiting period in Texas. But, other than that, it’s difficult to know how long your case may last as there are a lot of variables that can impact the timeline. If children and/or property are involved in your divorce, the chances are it will take longer than two months to complete. Also, the specific issues/allegations in your case have a big role in when you will finish the case. The more complicated the issues, typically the longer the case will last. Conversely, if the parties can agree on most of the terms for the case, that will help expedite the process.

Q. How much will my divorce (or other family law case) cost?

This is another great question we get asked regularly. Just like how long a case takes to complete, the cost of the case greatly depends on the issues between the parties and what things happen while the case is pending. If the parties can treat each other amicably, they have a much greater chance at saving money on legal fees. But, the more parties fight with each other, the more expensive their case becomes.

Q. Do I have to hire an attorney?

The short answer is no. You do not have to use an attorney in a family law case. In fact, if your divorce doesn’t involve children or property, there is a good chance you can handle the case yourself. Many courts have law libraries with standard forms that you can complete yourself and file with the court. The law librarians cannot give you legal advice, but they can help you find the forms you need.

If your case does involve children, it’s best to hire an attorney (or at least consult with one). When it comes to your children and your property, you want to make sure you understand your legal rights and your options. Trying to handle your divorce on your own to save money can cost you more in the long run. In fact, many clients come to us hoping we can “fix” or “undo” a problem that could have been avoided had they hired an attorney. Sometimes it’s not even possible to correct the issue. Even if the problem is something we can help with, it will cost more in legal fees to do so.

Q. Can my spouse and I use the same attorney for our divorce?

No. An attorney cannot represent both sides in a divorce (or other family law case). It is possible for just one party to hire an attorney and the other party to represent themselves. But, in that scenario, the party representing themselves must be aware that the attorney is not looking out for his/her legal interests. That attorney represents the spouse/opposing party in the case, so the party representing themselves should not expect to get legal advice or representation from that attorney.

Q. Do mothers always win custody over fathers?

Absolutely not. There is a common belief that the legal system favors mothers. Perhaps this was true many years ago. However, there are a lot of fathers that are excellent parents. Courts today will look at many factors when deciding what is in a child’s best interest. But, just because someone is a father does not mean he can’t get custody of his child.

Q. Can I move my children out of state?

Generally speaking, this is not something that is easy to do. Many counties have standing orders (a set of rules that apply to all family law cases) that prohibit moving children out of the area while your case is pending. And, once your case is finalized, there is a high probability the judge will implement a geographical restriction that limits the area where your children can live. The most common geographical restriction area is the county the case occurred in, plus all the surrounding counties to that county.

Q. How much child support can I get?

In Texas, there are child support guidelines that help determine how much child support someone will have to pay. For more on child support, read our blog article “Child Support in Texas.”

Q. What if I change my mind after I file?

Just because you filed for divorce does not mean you have to follow through with getting divorced. People decide to stop their divorce (or other family law case) for a variety of reasons. Reconciliation is one of the most common reasons why some cases aren’t finalized. Whatever the rationale, if you decide that you no longer want to pursue the case that you filed, you can nonsuit (i.e. – dismiss) the case. Nonsuiting your case makes it as if it was never filed. However, it is important to understand that if both you and your spouse each filed for divorce, nonsuiting your case will only dismiss the case you filed, it will not dismiss the case your spouse filed.

Q. Do I have to go to trial?

No, you are not required to have a trial. In fact, most cases don’t make it to trial because they settle the issues before the trial occurs. This process of settling the case can happen when the parties and their attorneys are able to work through the issues and reach an agreement. Additionally, mediation is a process that helps many parties settle their issues. For more on mediation, read our blog article “Mediation Overview.”

Q. What areas of law does your law firm handle?

At Grinke Stewart Law, we handle all areas of family law. Click here for a complete list of our practice areas.

Q. How long have you been practicing law?

Collectively, we have more than 30 years of experience handing family law matters.

Q. What counties do you practice in?

We primarily handle matters in Collin, Dallas and Denton county. However, we have also handled cases Grayson, Rockwall, Kaufman, Cooke, and Johnson county

Q. Is there a specific formula applied in dividing marital property in Texas?

There is no set formula applied in dividing marital property in Texas. Per Texas law, dividing property must be “just and right,” but it does not necessarily have to be equal (meaning, that there is no guarantee that each spouse will receive exactly the same amount).

Q. What types of assets/property are divided in a Texas divorce case?

In Texas, there are two types of property that apply in divorce cases. These are marital property and separate property. Marital property, also known as community property in Texas, is anything that the couple acquired during the marriage. Marital property in Texas includes:

• Real estate (including home, ranch, rental property, and farm)
• Vehicles
• Crops
• Livestock
• Equipment
• Investment account (stocks, mutual funds, annuities, bonds)
• Bank accounts
• Life insurance cash value
• Profit-sharing accounts
• Stock options
• Retirement accounts, including 401k accounts and pension plans, etc.
• Personal possessions such as furnishings, art and jewelry, etc.

Virtually anything acquired during the marriage is considered marital property. Texas is what is known as a “community property state,” where in most community property states, the division of marital property is closer to a 50-50 split. However, in Texas, judges have the discretion to order the division of property that is “just and fair” as opposed to equal.

Separate property is yours alone. This includes property that was inherited both before and during the marriage, property you brought into the marriage, things you received as gifts during the marriage, and judgments and settlements that were received in a personal injury case.

Once separate property is identified, it remains with the spouse who obtained it. However, disputes often arise as to whether a certain asset is marital property or separate property. For instance, if interest is earned on an account that was brought to the marriage, the interest would qualify as marital property while the original amount would constitute separate property.

Q. What is a QDRO?

QDRO stands for “qualified domestic relations order,” which is an order that divides a retirement plan between two spouses and changes its ownership, providing the agreed-upon share to the other spouse. In essence, it gives the other spouse the right to receive a percentage of the proceeds of the account(s).

Q. What’s the difference between an uncontested and contested divorce case?

An uncontested divorce is where the spouses agree that they should be divorced and on every aspect of the divorce case, including child custody, spousal support/alimony/maintenance, property division, child support, and visitation. If the parties do not agree on everything, including whether a divorce should be pursued, then the divorce is considered contested.

Q. Is a prenuptial agreement only for those who are wealthy?

No, a prenuptial agreement can be effective in a variety of circumstances, including when:

• There are children from a previous marriage.
• One or both of the parties have significant debt.
• One or both of the parties own a business.
• Property a party to the marriage wishes to keep separate, including real estate, heirlooms, etc.
• There is a significant difference in earnings or wealth of the parties.
• One of the spouse’s intends to stay at home.