Category: Divorce

Residency Requirements: How Long Do I Have to Live in Texas to Get a Divorce in Texas?

That’s a pretty simple question, with a somewhat complicated answer.

The short answer is this: If you or your spouse currently reside in Texas, either of you can file for divorce in Texas immediately.

Period.

There is a great deal of misinformation floating around. Some espoused by attorneys. Many attorneys believe that in order to file for divorce in Texas, one of the parties needs to have lived in Texas for over six months. That’s just not true.

Texas law states that in order to “maintain” a suit for divorce, one of the parties must have been “a domiciliary of this state for the preceding six-month period; and a resident of the county in which the suit is filed for the preceding 90-day period.” That’s Section 6.301 of the Texas Family Code.

The key word in that law is “maintain.” Courts have long held that if a divorce is filed prior to the time that the six month – 90-day requirement is met, the proper remedy is to abate the case – put it on hold – not dismiss the case, except in certain circumstances.

Those circumstances are when neither party has met the six month – 90-day requirement, and neither is going to meet it in the foreseeable future.

Moreover, if there are children of the marriage, and both spouses and the children have moved to Texas, there is no waiting period to file for the “custody” portion of the case. You can literally move to Texas Monday morning and file Monday afternoon.

Keep in mind that there are a number of other considerations involved in a complete jurisdiction and venue analysis, but the bottom line is: If you or your spouse reside in Texas and anyone tells you that you cannot file your divorce case here, they are wrong.

For a thorough discussion of the law on this topic by the First District Court of Appeals in Houston, see the case of Willig v. Diaz, 2016 Tex. App. LEXIS 5362 (Tex. App. Houston 1st Dist. May 19, 2016).

If you need to discuss your situation with the experienced attorneys of the Beal Law Firm, you can reach us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. Or check out our website at www.dfwdivorce.com.

Best Interest of the Child: How Courts Decide Custody Cases

In just about any family law case involving children, courts are guided by the Best Interest Test. It is the job of the court to determine what is in the Best Interest of the children and then order it.

The courts determine what is in the best interest of the children by considering the evidence put before them. So, when facing a custody fight, a party would be wise to consider what evidence the court cares about.

Here are some of the areas that a mom, dad, grandparent, or other party seeking custody or access to the child needs to be ready to put on evidence of:

1. What are the physical, psychological, emotional, and educational needs of the child, and how does the parent plan to meet them?

If your child has a particular need, you need to have evidence ready to show the court as to how you will meet the need. For example, if your child has dyslexia, you need to have a plan for how you will address the issue.

2. Are the parents able and willing to give first priority to the welfare of the child?

A party to a custody case should have evidence of how he or she has made the needs of the child a high priority in his or her life. A history of “dumping” the children off with others at every opportunity can often look bad in open court. An unwillingness to forego drinking to excess when in possession of children can also undermine a custody case.

3. Are the parents able to work together for the child’s best interest?

Most courts want parents to work together. Judges do not want to micromanage the lives of the children at issue in their cases. If the parties are able to work together, there should be evidence to show the judge. Often, however, one or both parties to come to court with evidence of how the other party refuses to work with them. If you think the other party will claim that you are antagonistic or unwilling to work together, you need to have evidence demonstrating that you are not the trouble-maker.

4. What is the history of the parents with the raising of the child so far?

The conventional wisdom is that whoever has been the primary caregiver of the child will be allowed to continue to be the primary caregiver of the child. But that is not always true. In many cases, life will be quite different after the conclusion of a custody case — particularly a divorce. A stay-at-home mom may now enter the workforce. That may rob her of the argument that she will be able to continue to do the things with the child that she has done thus far. Additionally, if the primary caregiver is shown to be a hard-drinking drug abuser, he or she may very well lose the position.

5. How close do the parents live to each other and how close do they plan to live to each other in the future?

Traffic, school, and work schedules can make it impossible to have a shared schedule that would be possible if the parents lived within the same school district and have flexible jobs. Additionally, as children get older, there are often more challenges, since school activities tend to be more mandatory than those of the YMCA or other recreational sports outlets.

6. What are the desires of the child?

There is a lot of misunderstanding about this. Many people — even some attorneys — repeat the refrain, “Once the child is 12, he or she can decide.” That’s simply not the law. A complete discussion of the “Being 12” impact on child custody is beyond the scope of this post, but the short version is this: What a child wants to do may have some impact on a custody case, but it is NEVER the sole deciding factor.

7. Any other relevant evidence.

Finally, remember that this is not an exhaustive list. Any admissible evidence of anything that impacts the Best Interest of the child can be considered by the court.

Be ready to help your attorney with identifying and gathering the evidence on all of these issues, and you will help your case and probably save some money.

To discuss any custody issue with the attorneys from the Beal Law Firm, write us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. Our website can be found at www.dfwdivorce.com.

How much will my case cost? The Top Four Determining Factors

That may be the number one thing on everyone’s mind that is involved in a divorce, custody, or other family law case. If not, it’s close to the top.

Divorce and Custody attorneys hear it all the time. The follow-up question is: Why can’t you tell me how much this will cost?

The reason is that the cost generally depends upon several factors, none of which your attorney controls. Most attorneys charge an hourly rate and most of the few that don’t have a number of “outs” that allow their “flat fees” to not really end up being flat fees, so these thoughts still apply.

So the bottom line is that an attorney cannot generally tell you what your case will cost because he or she does not know how much of his or her time it will take to handle the case.

Here are a few things that impact the amount of time that a case requires and which then affect how much the case will cost:

1. What your spouse or ex does

Fighting takes time. If your spouse or ex is the type that will fight about things that are insignificant, refuse to answer questions the first time he or she is asked, and generally make things more difficult, your attorney is going to have to spend more time dealing with your case.

2. What your spouse’s or ex’s attorney does

Attorneys can disagree without being disagreeable. The Texas Supreme Court came up with a thing called the Texas Lawyer’s Creed a couple decades ago because the problem of lawyers being so disagreeable had gotten out of hand. The Lawyer’s Creed contains a number of rules, including things like this:

I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

I will refrain from excessive and abusive discovery.

I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable.

I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process.

If both your attorney and the opposing attorney will follow these rules, your case will cost less. If not, it will cost more.

3. What the court does

Courts have different rules and different ways of doing things. If your court requires the attorneys to appear in person to tell the judge what the status of the case is, that will cost more than if the attorneys can send an email to the court coordinator. If the court requires a pre-trial hearing to set a case for trial, instead of a call or visit to the court coordinator, the hearing will be more expensive. If the court believes that an Amicus attorney should be appointed to look after the interest of the children in a custody case, that will cost more than if the Amicus was not appointed.

4. The decisions that you make

Finally, you will have a number of choices to make throughout the case. When you are asked a question in discovery, your decision on whether to answer fully and completely on the first request will have an impact on how much the case costs. If you are in a county with associate judges, your decision on whether to appeal the associate judge’s ruling or not will determine whether another hearing is needed. Deciding to appeal may be the right decision, but it will mean preparation for and conducting another hearing – which leads to more attorneys’ fees.

So, why can’t your lawyer tell you how much the case is going to cost? Because neither you nor your attorney know what the future holds. Neither of you knows how much time your attorney is going to have to spend dealing with your case, and without that information, there is no way to know.

There are things you can do to save money. Some of them are found in one of our previous blog posts, Six Ways to Save Money in Your Divorce or Custody Case. One of the biggest is: find a lawyer that you trust and ask questions along the way about the choices that need to be made, and how the decisions will impact both the cost on the front end — the attorneys’ fees — and the cost on the back end — the result.

If you would like to talk to one of the Beal Law Firm attorneys about representation, you can reach us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. You can always find us at www.dfwdivorce.com