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Frequently Asked
Questions about
Divorce
- How
much is it going to cost?
It is impossible to predict how much attorney's fees and expenses will be incurred throughout the litigation process. Mr. Prescott charges by the hour. The total number of hours varies widely, and is dependent upon the complexity of the property, child custody issues and other complicated factors. The cost of legal fees is a natural concern for anyone facing the financial impact of a divorce. We make every effort to resolve cases simply and efficiently, to minimize the costs for our clients. In addition, clients can do many things to help reduce their legal fees. We can discuss these approaches with you during an office visit.
Legal fees are incurred based on the attorney's hourly
rate, the legal assistant's hourly rate, and the number of hours
required to bring the case to resolution. In general, the more
complicated and contested the case, and the longer it takes to resolve,
the higher the legal fees. Cases that must be tried are always more
expensive than those that can be settled out of court.
After the
attorney has completed the initial meetings with you, he or she can give
you an estimate of what the fees for your case will be. This will be
expressed as a range, based on several variables in how the case might
progress.
For all new clients, payment of an initial retainer is required. This will be $2,500 to $20,000, based on the complexity of the case.
We are committed to providing top value for legal fees, by resolving complex issues in a cost-conscious manner and by effectively representing our clients' financial interests. Return to top
- How
long will it take?
As the first official step in all cases, a Petition for Divorce
is filed with the court. The petition must be on file for at least 60
days before a final resolution may be reached. Thus, a divorce takes
about two months at an absolute minimum.
On average, most cases
that require the services of our firm are finalized within six to eight
months. The more complex and contested the case, the longer it will
take. An overview of the step-by-step process is available at Litigation
Process. Return to top
- Can
my spouse prevent me from getting a
divorce?
The general rule is no. Texas is a no-fault state. A party must
only allege conflict of personalities in order to obtain a divorce. Return to top
- Can my
spouse and I hire the same lawyer?
No. In Texas, an attorney may not
ethically represent both sides of the litigation.
If the parties
are reasonably amicable and both are motivated to contain fees, they may
wish to consider Collaborative Divorce. Under this model, each spouse
retains separate counsel, but their two attorneys work more
collaboratively to craft mutually agreeable solutions. For parties that
can work together to resolve their issues, a Collaborative Divorce can
offer a less adversarial and less expensive approach. Return to top
- Can I
recover attorney's fees from my spouse (or former spouse in cases of
modification)?
In limited cases, yes. There are, however, many factors that are
taken into consideration, including fault in the break-up of the
marriage and differences in earning capacities of each of the parties.
Return to top
- What is
community property, and how does it differ from separate
property?
Texas is a community property state. This means that all property
and income obtained during the marriage (whether by the husband, the
wife, or both) belongs jointly to the husband and the wife. By law,
community property must be divided in a "just and right" manner,
and not necessarily 50/50, at the time of divorce.
In some
circumstances, an unequal division of community property is found to be
"just and right." For example, a spouse whose earning capacity is
significantly greater, and who is at fault in the break-up of the
marriage, might receive less community property in the
divorce.
By contrast, separate property is not divided with one's
spouse at the time of divorce. Under Texas law, separate property
includes: property owned prior to the marriage, gifts to the individual,
the individual's inheritance, and certain parts of personal injury
settlements. Property purchased with separate property during the
marriage remains separate property if it can be properly "traced." Return to top
- Are
my employment benefits, including retirement funds and stock options,
community property?
Employment benefits that accrued during
the marriage are community property. This includes retirement accounts
in one spouse's name. Employment benefits such as retirement funds that
predate the marriage are separate property.
Stock options granted
during the marriage may be community property, even if they do
not vest until after the marriage ends. However, Texas law regarding
stock options is in flux; please speak with your attorney. Return to top
- What
is custody, and what is joint custody?
Custody as a term has a specific meaning
for family law. In general usage, people often refer to the parent with
primary possession of the child(ren) as "having custody." In legal
terms, however, custody has a meaning that is distinct from
possession.
Custody or "conservatorship" means the right to make
the major decisions about the child(ren)'s lives, such as where they
will go to school, their health care, etc. In Texas, joint
conservatorship is presumed to be in the best interest of the
children.
Joint conservatorship is not granted in situations
where one parent's abuse, family violence, neglect, serious mental
illness, or other serious problems pose a threat to the children. Please
speak with your attorney about these circumstances.
Divorcing
parents typically need to craft a joint conservatorship agreement. This
establishes their legal relationship as joint-conservator parents, and
specifically sets out how certain decisions will be made regarding the
children in the future.
Joint conservatorship does not mean equal
possession. It does not mean that the children will spend half of their
time in each home, or that one spouse will not pay child support to the
other. Return to
top
- What
is possession, and what is "standard possession" of children in
Texas?
Possession refers to the home where the children
reside. In most cases (excepting those where one parent has a history of
abuse, family violence, or other serious problems), possession is
shared. This means that the child(ren) will spend part of their time
living in each parent's home.
Any possession arrangement on which
both parents agree is an option, provided that it is in the best
interest of the child(ren). For parents who cannot devise a mutually
agreeable solution, or who simply wish to follow a standard model, the
Texas Family Code sets out a standard possession schedule for
children.
Standard Possession provides for the child to live a
majority of the time in the home of the "primary parent." The child then
spends specified times living in the home of the other
parent.
Standard Possession provides for the other parent to have
the child every Wednesday evening, every other weekend (from Friday
evening to Sunday evening), alternate major holidays, and for 30 full
days in the summer. Altogether, this adds up to about one-third of the
child's time, outside of school hours. An expanded Standard Possession
can also be an equitable solution.
We strongly encourage our
clients to carefully consider the desires and best interests of the
children in working out possession schedules. In the case of young
children, the agreement might specify that possession will be revisited
when the child becomes an adolescent, or at other milestones in the
child's life.
Existing possession schedules are subject to
revision, through a process known as modifications. Please discuss this
with your attorney.
You can review the Standard Possession guidelines in the Texas Family Code online. Return to top
- Can my spouse
make me stay in Travis County?
Yes, if both will share joint custody and
possession of the children. A domicile restriction may become part of
the legal documents, if the court or the parents determine that it will
be in the best interest of the children. Return to top
- How much
child support will I have to pay?
Please refer to the Child Support section of the Texas Family Code online. Return to top
- How
soon can I begin receiving child support?
It is very common for a temporary hearing
to be held within two weeks of filing for divorce. At this hearing the
court can determine temporary child support, temporary alimony,
temporary custody, temporary visitation and temporary use of the home.
Return to top
- Can I get alimony?
In Texas, there are two kinds of alimony:
Contractual and court-ordered. Court-ordered alimony is rare and tends
to be granted only in cases of family violence, or after a marriage of
at least 10 years. A significant difference must exist between the
earning capabilities and/or financial assets of the two partners. The
party seeking alimony must be able to show true financial
hardship.
However, the two spouses can agree to "contractual
alimony." This is an allowance paid for a specified number of years,
during the separation and/or after the divorce. The payments are
tax-advantaged.
For example: The parties might agree that alimony
payments are just and equitable if one spouse has been the sole income
producer for the family and continues to earn a substanial income, while
the other spouse has never worked outside the home but has made
significant contributions to supporting the wage-earner's career.
Individual agreements must be negotiated that are acceptable to both
parties. Return to
top
- When am I required to go to mediation, and can I do this
without a lawyer?
In Travis County, the parties are required to attempt to resolve
their differences at mediation, before proceeding to court. (Please see
discussion of mediation.)
Individuals are not required to have an
attorney present at the mediation session. However, it is very much in
their best interests to do so. Texas community property law, and laws
regarding the custody and possession of children are complex. It is
unlikely that the individual will be best-served in the negotiation,
without an attorney present who is familiar with the intricacies and
interpretations of the law.
In cases where children and community
property are not factors, an attorney may not be needed at mediation.
However, these cases rarely proceed to trial. Return to top
- Where can I get more information about Texas family
law?
The Texas Family Code is available
at Texas Legislature Online.
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