Category: Frequently Asked Questions

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Divorce Frequently Asked Questions

Preparing for a Texas Divorce Consultation

Are you getting ready to speak with an attorney regarding a divorce in Texas?  Often, I find that potential clients who come into my office are unsure of how to prepare for such a consultation or even what questions to ask in a consultation.  A little bit of preparation goes a long way in helping you to determine if the attorney sitting across the table is the right one for you.

Scheduling the Divorce Consultation

For our purposes, let’s assume you have found one or more attorneys you wish to meet with regarding filing for divorce in Houston or a surrounding county.  When you call the attorney’s office, you may speak with a staff member or the attorney themselves.  This often depends on the practice in that particular office or the availability of the attorney at that moment.  If you happen to reach the attorney during your phone call, keep in mind that they are usually very busy at that time.  While most attorneys are happy to answer basic questions about themselves during that call, it is best to reserve questions about your case or Texas divorce law in general for your consultation.

Also, keep in mind that attorneys generally keep normal business hours.  For most law offices in Houston, it is normal to maintain business hours Monday through Friday from around 8:00am to 5:00pm.  If you also happen to work normal business hours, be prepared to either take some time off from your job to visit with the attorney or try to schedule a consultation during your lunch hour.  I often meet with clients during their lunch time, as many of my clients work in the Galleria area of Houston, which is where my office is located.

Also, you may want to ask about directions to the office, as well as information about parking.  For example, is there a parking garage attached to the office building?  Is the parking free, or is there a fee?  How much should you expect to pay for parking, and should you bring cash for parking instead of relying on the garage attendant accepting credit cards?  All of this may sound basic, but it will assist you in making the appointment move as smoothly as possible.  For example, our office building has a parking garage attached to the back of the building, and the parking is free.

Finally, you will need to know whether the attorney charges for a consultation or whether it will be free.  Sometimes, it will depend on the purpose of the consultation.

Preparing for the Divorce Consultation

Many attorneys will ask you to complete one or more forms before you arrive for the consultation.  This assists the attorney in maximizing the amount of time the attorney has with you to answer your questions and tell you about the process of obtaining a divorce in Texas.  You may also be asked to bring a number of documents with you.  Such documents may include the following:

  • Income tax returns for you and your spouse for the last two years
  • Paycheck stubs for you and your spouse for the last three pay periods
  • If you have been served with a divorce petition, a copy of all paperwork served on you
  • If you have received an e-mail or letter from your spouse’s attorney, a copy of that correspondence

In addition, the attorney needs to know what your goals for the divorce may be.  That can be a difficult question to answer, particularly because you may be unsure of what you may be entitled to under Texas law.  Don’t worry about the legal terms involved – focus more on the practical result.  Instead of coming into the consultation saying, “I want full custody of my child.”, you may instead want to advise the attorney, “I want to ensure that my child stays with me most of the time, with the other parent getting time on occasional weekends.”  That second statement tells the attorney much more than the first statement, for reasons explained in this prior blog post about “full custody”.  If need be, take notes about your goals before the consultation and bring those notes with you.

Finally, if you have specific questions you want to ask the attorney, write those down as soon as you think of them.  Please be mindful of the amount of time you have scheduled with the attorney, whether only a half-hour or an entire hour.  Make the best use of your time and stick to questions that you really need answered right away.

During the Divorce Consultation

In addition to ensuring that you bring all of your documents and notes as described above, ensure you give yourself enough time to get to the attorneys office.  An attorney’s time is valuable, as is your time.  You should expect your attorney to be ready to meet with you at the time you scheduled for your consultation.  At the same time, the attorney is going to expect you to be ready to meet with him or her once the time for the appointment has arrived.  If you are concerned that you may have difficulty finding the building, give yourself even more time to arrive and find the office.

Once you arrive, and sit down with the attorney, you will have an opportunity to ask questions about your case, about the attorney, and about the divorce process.  Obviously, potential clients often ask attorneys about their experience, or about their practice.  If you live in or near a major metropolitan area, you can often find attorneys who practice exclusively in the area of family law (which includes divorce and child custody).  It is important to know what percentage of time an attorney spends on cases similar to yours.  Retaining an attorney with 30 or 40 years of experience does little good if less than 10% of that attorney’s practice is focused on family law.  You want someone who has assisted numerous clients with issues similar to yours.

Also, you need to know how familiar the attorney is with the judges in the county in which you intend to file.  Better yet, if you have been served with a divorce petition and know which court you’re in, find out how often that attorney has practiced in front of that judge.  Judges in family law cases are given wide discretion as to how they may rule on many issues, including determining the residence of a child , possession schedules, and marital property division.  An experienced divorce attorney will be familiar with the judge and their basic philosophy about these issues.

Finally, and most importantly, you must determine for yourself how comfortable you are with the attorney and whether you can trust that attorney with your case.  If you have little to no confidence in that attorney’s judgment and ability, you will not be able to take full advantage of what that attorney may have to offer.  Even if you have the best divorce attorney in the entire city, that attorney’s skills matter little if you’re not willing to accept or trust their advice.

After the Divorce Consultation

At the end of the consultation, an attorney may offer to provide you with a draft of a fee agreement to review and sign.  It is never a good idea to hire an attorney for the first time without some form of written fee agreement describing the financial arrangement.  You want to ensure you know what you will be charged for the attorney’s time and how it will be billed.  Most attorneys today bill their time on an hourly basis in six-minute (one-tenth of an hour) increments.  Fewer still may bill in fifteen minute (one quarter of an hour) increments.  Make sure you understand how you will be charged for phone calls and e-mails under such a system.  If you’re not careful, you may incur substantial fees by repeatedly calling and e-mailing your attorney every day.  Most attorneys are happy to suggest ways to keep your fees low, such as ensuring you write down your questions and concerns and then only calling or e-mailing the attorney once you have a number of those questions ready.

Also be prepared to pay a retainer (sometimes also called an “advanced fee”).  This retainer or fee is kept in the attorney’s trust account and is not earned by the attorney until they perform work on your case and issue an invoice for payment of services and expenses incurred.  If the retainer is exhausted, you will likely need to pay an additional retainer.  Some firms even require you to replenish the retainer with each invoice (also known as an “evergreen retainer”).  Ensure you understand your financial obligations before signing any fee agreements.

Finally, if you need additional time to consider whether to hire the attorney, make sure you have the attorney’s business card.  Also, make notes to yourself during the consultation or immediately after the consultation to ensure you recall your impressions of that specific attorney as well as pertinent information about their fees, experience and practice.  That will come in handy later when you’re ready to pick an attorney.

Categories
Divorce Spousal Maintenance / Alimony

Why did the Court Award Temporary Support to Your Spouse?

All too often, when I get calls from potential clients seeking a divorce, they refer to their assets in personal terms.

“That’s my car.  I purchased it with my money.”

Of course, after having a bit of a discussion with the potential client, they soon learn that when it comes to marital property laws in Texas, there is rarely such a thing as “your car” or “your money”.  Instead, once you’re married, nearly everything you acquire belongs to the community estate.  That community estate belongs to both you and your spouse.  While you may have a right to manage your earnings how you wish, you do not have a sole property right to them.

So when one person is the primary income earner for a household, they often find themselves paying for some of their spouse’s expenses while their divorce is pending.  Sometimes they may even find that the court has ordered them to make cash payments to the other spouse for certain expenses, including attorney’s fees.

Without such provisions, stay at home moms (or dads) would find themselves unable to afford to file for divorce or obtain legal representation if their spouse decided to file for divorce.  Sure, they would receive part of the community property at the end of the process when the marital estate is divided, but that doesn’t help them while the divorce is proceeding.  Instead, this provides the spouse who otherwise would have little to no access to community funds an opportunity to make ends meet and to hire an attorney.

There is, of course, a limit to this.  Courts in Texas have found that spouses are only entitled to enough temporary spousal support to meet their reasonable necessary expenses.  It is not intended to maintain a particular lifestyle, no matter how accustomed to it they have become.  It’s also irrelevant if the other spouse could afford to maintain that high level lifestyle.  The court is going to look at all sources of income (including child support) available to the spouse seeking support, as well as the reasonable necessary expenses.  If there is a shortfall, the court should only order the payment of an amount to make up the difference – nothing more, nothing less.

It is important, therefore, to hire an attorney who will scrupulously examine financial information statements submitted for hearings on such temporary orders to ensure that the expenses claimed are, in fact, reasonable and necessary.  Without a critical eye, a party might include expenses that are not at all necessary, which could pose a substantial financial burden on the spouse ordered to pay support.  On the other hand, unless a spouse asking for support is careful to put together a financial statement that is reasonable and fair, and includes all necessary expenses, they may find that they do not receive the full amount of support that they need in order to make ends meet.

Categories
Frequently Asked Questions Spousal Maintenance / Alimony

New Texas Alimony Rules

During the last meeting of the Texas Legislature, new rules were adopted to define alimony benefits for spouses.  In Texas, alimony is referred to as spousal maintenance.

Chapter 8 of the Texas Family Code provides for spousal maintenance under limited circumstances.

Who is eligible for spousal maintenance in Texas?

Texas law allows a spouse in a divorce proceeding to seek spousal maintenance “only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs.”  The spouse also has to demonstrate to the court one of the following:

    • The parties have been married for at least 10 years and the spouse applying for maintenance lacks the ability to earn income sufficient for his or her minimum reasonable needs.
    • The spouse seeking maintenance cannot earn enough income to meet his or her minimum reasonable needs due to “an incapacitating physical or mental disability.”
    • The spouse applying for maintenance is the custodian of a child (either a minor or an adult who is legally considered a child due to their condition) who “requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.”
    • The spouse asking for maintenance was the victim of domestic violence (or a child of the marriage was such a victim) which resulted in the other spouse either being convicted of domestic violence or receiving deferred adjudication for domestic violence within two years of the filing of the divorce or during the pendency of the divorce.

It is important to note that this is an exhaustive list.  Courts do not have the ability to award spousal maintenance for any other reason.

How much alimony can a spouse receive in Texas and for how long can they receive it?

Once a court determines that a spouse is eligible to receive maintenance, the court will use the following factors to determine the amount and duration of those payments:

each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;

    • the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
    • the duration of the marriage;
    • the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
    • the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
    • acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
    • the contribution by one spouse to the education, training, or increased earning power of the other spouse;
    • the property brought to the marriage by either spouse;
    • the contribution of a spouse as homemaker;
    • marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and,
    • any history or pattern of family violence.

This list, however, is not exhaustive.  The court is allowed to consider all relevant factors, including those outlined above.

Are there any limits imposed by Texas law on the duration of spousal maintenance payments?

Yes, Texas courts are limited in how large of a payment they may award and the duration of those payments.

If the spouse seeking maintenance qualifies due to domestic violence, and the spouses were married less than 10 years, the payments may last for no longer than 5 years.  Also, if the spouses were married between 10 and 20 years, the duration is also limited to 5 years.

If the spouses were married between 20 and 30 years, payments may be ordered for up to 7 years.

If the spouses were married for 30 years or longer, payments may be ordered for up to 10 years.

The court, however, must limit the payments to the shortest possible duration in which it is determined that the spouse will be capable of earning sufficient income to cover their reasonable minimum needs.  The one exception is that no limit is placed upon payments to a spouse who has a permanent condition or situation which prevents them from earning sufficient income to meet their reasonable minimum needs, such as a disability, the responsibility of caring for a special needs child, or some other circumstance which prevents from from taking care of themselves.

May Texas courts award any amount of money for spousal maintenance payments they wish?

No.  Texas courts are limited to awarding the lesser of $5,000 per month or 20 percent of the other spouse’s gross monthly income.

If my spouse begins to live with their boyfriend or girlfriend, or if they remarry, do the spousal maintenance payments end?

Generally, yes.  The court will have to have a hearing to determine whether such an event has occurred.  If the court determines that the person receiving payments “cohabits with another person with whom the [recipient of payments] has a dating or romantic relationship in a permanent place of abode on a continuing basis.”

I have more questions.  Who can I turn to?

Feel free to call Bobby Warren at 713-579-9702 and find out how he can become your Houston family lawyer.