Frequently Asked Questions
In order to qualify for a divorce in Texas, one of the spouses has to have been a resident of the state for a continuous six month period and of the county of filing for a continuous 90 day period prior to the filing of the Petition.
A typical divorce requires the following steps:
- The Original Petition for Divorce is filed with the court and personally served on the Respondent (the Respondent can waive service in writing if the parties are working together toward settlement from the beginning – this saves on cost and on conflict).
- At the time of filing, the Petitioner can request that a standard Temporary Restraining Order (or an extraordinary order if circumstances warrant) be issued, which basically freezes the status quo of the parties and requires that no assets start to disappear before they can be divided by the court, requires that the parties act civilly toward each other and do not threaten or harass each other, steal each other’s cars or mail, cut off each other’s utilities, credit cards or insurance, or hide the children from each other.
- If there was no Temporary Restraining Order issued, the Respondent has twenty days plus the following Monday to file an Answer. If a Temporary Restraining Order was issued, the court must set a hearing within 14 days of issuance. At that time, the court will make the Temporary Restraining Order into a temporary injunction against both parties and will usually consider temporary orders, which are the set of rules the parties will live under while the divorce is pending.
- Temporary Orders usually involve temporary custody, visitation and support of the children, and temporary use of property and servicing of debt. It can include temporary spousal support and the payment of interim attorney’s fees as well.
- The parties then engage in discovery, which is the process by which parties exchange information and documents that are relevant to the case. Common types of discovery are interrogatories (written questions), requests for admissions(true/false type statements), requests for production of documents, and depositions (oral interrogations under oath).
- After the discovery is completed the parties and their attorneys (if they are represented) will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare an Agreed Decree of Divorce, which will contain all of the terms of the agreement. This is signed by the spouses and their attorneys, and then eventually by the judge.
- If the parties are not able to agree on all of the issues in the case, a trial date will likely be set.
- Prior to trial, the parties will be required to attempt mediation. Mediation is an informal process allowing parties to work with a neutral third party (the “mediator”) to attempt to negotiate and settle all terms of their conflict. All communications (with very limited exception) made during the mediation process are protected by rules of confidentiality and cannot be used at trial. Parties can propose and agree to creative settlements that could not otherwise be ordered by a court during litigation.
- If the parties reach an agreement through mediation or by agreement of the parties, then at least one party must appear before the judge to prove-up the agreement.
- If the parties fail to reach an agreement in mediation, the case goes to trial. At the conclusion of the trial, one of the attorneys will prepare a Final Decree of Divorce to present to the judge for signature. This will contain all of the court’s rulings and (hopefully) will have resolved all issues pertaining to the divorce.
There is a 60 day waiting period in Texas from the date of filing of the petition with the court. That means that a divorce cannot be final for at least 60 days after filing – it does not mean that the divorce is automatically final on the 61st day. If the parties are in agreement as to all the terms of their divorce, the final decree of divorce can be prepared and signed by the parties during the 60 day period and can be entered by the court on the 61st day. The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce. If the parties are not in agreement, the average time it takes to finalize a divorce is about 6 months to one year or longer, depending on the complexity of the issues and the degree of dispute.
Texas law allows for “no-fault” divorces. However, if one party is at “fault” for the breakup of the marriage, the court may take that into consideration in determining what is an “equitable” division of the property. For that reason, the other spouse may want to plead fault grounds in their petition. The statutory grounds for divorce are:
- Cruel treatment (that renders further living together insupportable)
- Abandonment (for at least one year with the intent to abandon)
- Long-term incarceration (more than one year)
- Confinement to a mental hospital for at least 3 years
- Living apart for at least 3 years
- Insupportability (which is the no-fault ground), defined as discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.
Temporary spousal support is often awarded at a temporary orders hearing on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. There are no guidelines to set temporary spousal support, so the party seeking support should be prepared to show what his/her needs are and what resources are available to the other spouse to meet those needs.
Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse’s group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as “C.O.B.R.A” benefits, which are available to the former spouses of people who work for employers who have 20 or more employees.
In general this law provides that employers must offer “continuation coverage” for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees.
After the three years have ended, the law states that the employer must offer a former spouse the right to purchase “conversion coverage”, but there are no limits on how much the employer can charge for this coverage.
The C.O.B.R.A. law further provides that the former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing condition that might not be covered by another medical insurance carrier.
In order to obtain your C.O.B.R.A. benefits you have to file your application with your spouse’s employer by no later than sixty (60) days after the termination of your marriage. If you do not file your application by that date you will not be able to get these important benefits.
If you wish to have your C.O.B.R.A. benefits you must contact your former spouse’s employer directly and request the appropriate forms. This is not a service that is customarily performed by our office. You must contact your former spouse’s employer directly if you want to obtain these benefits.
In most circumstances, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process — most often the closest capable relative, or the person who inherits the bulk of the deceased person’s assets. If no formal probate proceeding is necessary, the court does not appoint an estate administrator.
Probate is a legal process that takes place after someone dies. It includes:
- proving in court that a deceased person’s will is valid (usually a routine matter)
- identifying and inventorying the deceased person’s property
- having the property appraised (if necessary)
- paying debts and taxes, and
- distributing the remaining property as the will directs.
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property.
Probate usually works like this: After your death, the person you named in your will as executor — or, if you die without a will, the person appointed by a judge — files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you’ve left. Then, relatives and creditors are officially notified of your death.
Your executor must find, secure and manage your assets during the probate process, which commonly takes from three months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them.
In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on. Eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners.
The probate of estates can be a very simple and streamlined procedure. However, it does require the cooperation of all of the heirs and beneficiaries in valuing the assets of the deceased and accounting for his debts and obligations.
An important result of the probate process is that the heirs and legatees are given an income tax basis in the assets that they receive, according to the value determined in the probate process.
This income tax basis will be the number used for determining gain or loss if an asset is later sold as well as the basis for depreciation, if an asset is used for business.
The probate process is often daunting. Having an overall picture of what the process entails, and how steps fit together, will help everyone involved. However, the probate of every estate is unique. Everyone has different assets, debts, record-keeping habits, goals and family. Thus, the following description won’t precisely match any probate you may become involved in. But flexibility, keeping in mind the overall picture, and careful use of professional advisers will help any executor complete his or her tasks effectively.
When death occurs, final arrangements–the funeral, ceremony, burial or cremation, and cemetery or other instructions–must be dealt with. Immediate family members generally handle this, but depending on the circumstances, a partner, friends or others may become involved. If you are the executor, your first step is to determine the wishes of the decedent. Most likely, the decedent has communicated these to you and others. In any event, consider all the sources of information so that you can carry out (or help others to carry out) the decedent’s wishes:
Letter of instruction. Many people prepare a letter of instruction that addresses many issues, including organ donations, funeral and burial or cremation requests. Try to locate this letter and review it as quickly as possible.
Living will. A copy is often kept in the decedent’s physician’s records or hospital records. Living wills often include the decedent’s wishes for final arrangements.
Health care proxy. Some people sign only a living will, others only a health care proxy, some both. If the living will is silent, the health care proxy may include directions as to how to handle funeral and other steps.
Deed for a burial plot. Many people purchase plots in advance. Locating this information can resolve the issue in many cases as to where and to some extent how the decedent’s burial or internment should be handled.
Pre-need funeral trust. The decedent may have made arrangements in advance for funeral costs. Review the decedent’s letter of instructions and other important papers for this. Ask close friends and family whether they were aware of such arrangements. Call area funeral homes to find out whether any arrangements were made with them.
Will. While a will may list the intent to be an organ donor as well as directions for the funeral and other final arrangements, it is often not available quickly enough. If the decedent’s intent cannot be determined from the other sources indicated, attempt to locate the will quickly, or at least a copy. If the will is in the decedent’s safe deposit box, expedited procedures are available to get it. Consult with the estate’s attorney.
Contact the decedent’s religious adviser. If the decedent had any religious affiliations or beliefs (these are sometimes addressed in the living will), request a consultation with the religious adviser concerning the appropriate steps to take for burial, services, mourning and the like. If the family, friends and loved ones have any particular religious affiliation, a religious adviser may provide considerable solace for them.
Consult members of the decedent’s family and loved ones. The decedent’s wishes must be honored, but often requests and feelings of others can also be respected. It can only serve to lessen tension at such a traumatic time.
Because funeral and related immediate costs must be taken care of promptly, they are often paid for by family or others close to the decedent. The estate reimburses them later. State law will generally provide that the estate must reimburse reasonable funeral expenses. Get copies of all bills, receipts and other documents supporting the expenses you reimburse. If the funeral arrangements were lavish, unusual or expensive, an issue may arise as to what the estate can pay for. The will may provide directions for funeral or other arrangements that could be helpful for you as executor. If there are any disputes among family or others at a later date concerning these arrangements, the directions in the will can support your payment of these costs. If the will is silent and the expenses unusual, consult with an estate attorney before reimbursement to avoid any risk of being personally surcharged.
Beneficiary – A person named in the will to receive specified property.
Beneficiary Designations – Beneficiary Designations on life insurance policies, retirement plans, annuities, bank accounts with a named “pay on death” or “due on death” beneficiary, etc., will determine who receives those moneys upon your death, not your Will. A beneficiary designation is a binding contractual obligation and a Will provision will not alter that designation.
Decedent – A deceased person, especially one who has lately died. Can be either testate or intestate.
Directive to Physicians (also Living Will) – A legal document containing instructions for physicians regarding your life-support preferences.
Estate – Everything that you own at your passing after payment of debts and taxes. The total property of whatever kind that is owned by a decedent prior to the distribution of that property in accordance with the terms of a will, or, when there is no will, by the laws of inheritance in the state of domicile of the decedent. It includes both realty as well as the personalty.
Executor (also Personal Representative) – The person appointed in a Will by the testator (person making the Will) to carry out the terms of the Will.
Fiduciary bond – A type of surety bond required by the court to be filed by executors, guardians, etc., to ensure proper performance of their duties as an executor. Typically waived, especially when a spouse or family member is appointed executor.
Funeral Arrangements – Rather than including your funeral wishes in your Will, it is best to make your wishes known to loved ones in writing prior to your death since the will is usually not even read until after the funeral.
Guardian – A person lawfully invested with the power, and charged with the duty, of taking care of the person who is incapable of doing so because of age or other incapacity.
Intestate – To die without a will. A person is said to die intestate when he dies without making a will, or dies without leaving anything to testify what his wishes were with respect to the disposal of his property after his death. Under such circumstances, state law prescribes who will receive the decedent’s property.
Joint Tenants with Right of Survivorship (JTWROS) – A single property owned by two or more persons, under one title, with equal right to the property. At the death of one joint tenant, the property transfers to the surviving tenant.
Medical Power of Attorney (also Health Care Power of Attorney) – A legal document appointing a person the authority to make medical/health care decisions on another person’s behalf.
Mortgaged Property – If you leave to a named beneficiary real/immovable property which is mortgaged, that property will generally pass under your Will to the beneficiary subject to the debt secured by the mortgage. If you wish to leave the property free and clear of the mortgage debt, you must include a provision in your Will directing the debt to be paid from the other assets of your estate, provided sufficient assets are available.
Probate – The judicial determination of the validity of a Will. In current usage, this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered. Generally, the probate process involves collecting a decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. These activities are carried out by the executor or administrator of the estate, usually under the supervision of the probate court or other court of appropriate jurisdiction.
Real property – Land, and generally whatever is erected or growing upon or affixed to land.
Testate – One who has made a will; one who dies leaving a will.
Trustee – A person appointed to manage the financial affairs of the one who is legally incapable of doing so because of age or other incapacity.
Will – A written instrument executed with the formalities required by law, whereby a person makes a disposition of his property (real and personal) to take effect after his death.