Frequently Asked Family Law Questions And Answers
There is a lot of fear and uncertainty accompanying nearly any family law case – especially those involving child custody determinations. Below, we’ve provided answers to common questions that will hopefully ease some of your concerns. After reading, feel free to contact us with your own questions.
Who is an attorney ad litem? How are they used?
Everyone deserves qualified legal representation during important court proceedings, but not everyone is able to hire their own counsel (such as children, for instance). An attorney ad litem is an attorney appointed by the court to provide legal services and advocate for the interests of the person they are assigned to. This could be a child, an adult or an adult with disabilities, to name just a few examples. They are not used in all court proceedings or in every case, but they are commonly used for things like child custody (conservatorship) matters, adoptions and CPS cases.
Who is an amicus attorney? How are they used?
In a private family law case, an amicus attorney is assigned to protect an individual’s best interests, but the amicus attorney works for the court and not for the client (in contrast to an attorney ad litem).
An amicus attorney might be court-appointed to protect your child’s best interests in a custody case, for instance, but the attorney provides services for the court. He does not have an attorney-client relationship with you or your child.
What is mediation, and how is it used?
Litigation (a trial in court) used to be the only way to handle matters like divorce and child custody. But this process can be unnecessarily adversarial and expensive. Since the mid-1990s, an alternative has existed in Texas: mediation.
Mediation is a series of negotiation sessions between the two parties and their respective attorneys, facilitated by a neutral third party (the mediator). The goal is to reach an agreement on disputed matters through negotiation and to write down those terms in a mediated settlement agreement. If the mediation is unsuccessful in reaching an agreement, the parties can take their case to trial.
Texas judges have the authority to order couples to try mediation before they can litigate, and many judges do require this.
What is a child custody evaluation, and how is it used?
Judges can choose to appoint a professional to evaluate the home life of children and, more importantly, the strengths and weaknesses of each parent. The results of this evaluation will then be used to inform custody decisions. Custody evaluations are not always needed or ordered. In some cases, guardians ad litem are used in place of custody evaluators, and sometimes they are used in cooperation with custody evaluators.
What is a child custody calendar? How is it used?
These are calendars we frequently offer to our clients that they can use to keep track of significant co-parenting events such as custody exchanges and late pickups. They can be highly important in your case or in seeking a modification to the custody order.
In one case, a parent was granted 120 visitation days a year. The spouse kept records on a calendar showing that the parent only utilized about 75 of those days. Because of this evidence, we successfully petitioned the court to reduce the parent’s possession and access.
How long does the divorce process take?
The duration of the divorce process in Texas can vary significantly depending on each case’s specific circumstances. The mandatory 60-day Texas waiting period applies from the filing date before your divorce can be finalized.
Suppose the divorce is contested or involves complex legal family matters like child custody, property division or spousal support. In that case, the process can take much longer, as it may require extensive negotiations, mediation or even a court trial to reach a final resolution. Uncontested divorces, in which the spouses come to terms on all the terms, can be resolved more quickly, usually within a few months.
What should I do to prepare to file for divorce in Texas?
Preparing for a successful divorce in Texas involves some important legal steps, including:
- Gathering all the relevant documentation
- Developing a detailed budget outlining your current and anticipated expenses after the divorce
- Reviewing and understanding the assets and debts acquired during the marriage and those owned before the marriage
- Consideration of child-related matters
- Consulting with an experienced divorce attorney
Like other Texas family legal processes, early preparation can help you know your rights and develop a legal strategy to boost your case’s outcome.
How is property divided in a Texas divorce?
Texas is a community property state, meaning all assets and debts you acquired during marriage are considered community property and are subject to division during divorce. The division is based on a “just and right” standard, which takes into account the following:
- Each spouse’s earning potential
- Fault in the breakdown of the marriage
- The needs of any children involved
- The financial condition and each spouse’s needs
Separate property, which includes assets owned before the marriage or acquired via inheritance or gift, is generally not subject to division. However, the court may consider the effects of separate property on the community estate when making a just and right division.
What circumstances allow for a child support modification?
In Texas, child support awards can be modified under various circumstances. Generally, a court will consider changing a child support order if there has been a significant change in circumstances or needs since the last order was made.
One common reason for modification is a significant increase or decrease in parental income (for either parent). This might happen due to a new job, job loss or a significant change in work hours.
Changes in the child’s needs, such as increased medical expenses, educational costs or special needs, can also justify a modification.
Changes in child support awards are appropriate in response to changes in the allocation of parenting time. For example, if the noncustodial parent gains a greater share of custody (regardless of whether they become the custodial parent), the support arrangement may need to be adjusted accordingly.
In cases where the child becomes emancipated, either by reaching the age of 18, getting married or joining the military, a modification (or termination of the order) may be warranted.
Finally, if it has been at least three years since the order was established or last modified, a modification can also be sought under some circumstances. The monthly amount of child support must differ by either 20% or $100 from the amount that would be awarded today under the Texas child support guidelines.
If you believe that your situation warrants a change in the child support order, seeking legal advice can help you understand the modification process and ensure that your petition is properly presented.
Which issues can prolong the divorce process?
While not an exhaustive list, here are the factors that commonly impact the length of the divorce process:
The resolution method used: Mediation and arbitration tend to produce a divorce settlement much more quickly than litigation. There are many reasons for this, including the fact that litigating a divorce often involves waiting weeks or months for available court dates.
Whether the divorce is fault-based: Couples have the option of filing a no-fault divorce, which is typically faster and less acrimonious than alleging that one spouse was at fault for the breakdown of the marriage.
Whether the couple has minor children: Child custody proceedings will add time and complexity to a divorce, compared to a divorce between childless spouses.
Contested terms: This is one of the biggest factors that influences the length of divorce. Couples who agree on all terms of the divorce beforehand can file uncontested. If there are disputes regarding property division, spousal support, child custody or any other aspect of the divorce, these will need to be resolved, which takes time.
Size of the marital estate and complexity of assets: It typically takes more time and effort to reach a divorce settlement in cases where couples have significant and varied assets, or assets that are complex (like a closely held business).
One or more uncooperative participants: In Texas, a spouse cannot stop a divorce simply by refusing to participate. However, they can slow the process down considerably, costing everyone time and money. There are cases in which both spouses do this to one another simply for spite or revenge.
You cannot control the actions and decisions of your spouse, but you can keep these factors in mind when discussing timeline and strategy with your own attorney.
Get Answers To Your Questions In A Free Consultation
Ruiz & Associates, PLLC, is pleased to offer free initial consultations to prospective clients. To schedule yours, call our office in San Antonio, Texas, at 210-899-4853 or fill out our online contact form.