Below you will find frequently asked divorce, child custody, child support and other family law questions.

Q: Can I record a phone call without telling the other person that it’s being recorded?

A: So long as both of the people on each end of the phone call are in Texas only one of them must know that the call is being recorded. If one is in Texas and the other is not, then the call may not be recorded without disclosing it to the party being recorded.


Q: Can one lawyer represent both people in a divorce?

A: The law does not require that each spouse have a lawyer in a divorce, but it permits a lawyer to represent only one person. If the husband or wife has an attorney, the other may represent himself or herself. It is not uncommon for one spouse to choose not to employ an attorney and for both to meet with Mr. McNamara together. In such situations, he encourages the unrepresented person to have the proposed final documents reviewed by an independent lawyer. He speaks honestly and frankly with each person and makes sure that all understand the law and the options available. He also makes sure that everyone understands that he may only represent one spouse. If the parties are seeking an open and honest discussion with guidance and input by an experienced lawyer, Mr. McNamara provides that. When it’s time for tough negotiation, he is a firm advocate for his client.


Q: Do I need to hire a divorce attorney?

A: It is not mandatory that you hire an attorney and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues, it is beneficial to employ the services of a professional who is knowledgeable with Texas law and experienced in the field.


Q: Does Texas Law Provide For Alimony or Spousal Maintenance?

A: Texas has a limited spousal maintenance statute. It is difficult to qualify for maintenance and it can only last for up to 36 months. To qualify, generally the marriage must have been for more than 10 years, with a limited exception in the case of domestic violence. Additionally, the spouse seeking maintenance or alimony must be unable to provide for his or her minimum reasonable needs either through employment or through the assets awarded to that spouse in the divorce. A spouse who is unemployable but who also receives a substantial property award may not qualify for alimony; and a spouse who receives no property but can earn enough to provide for his or her minimum reasonable needs would also have a difficult time qualifying for spousal support.


Q: Does Texas Recognize Legal Separation?

A: In Texas, there is no legally recognized status called “legal separation.” After a divorce is filed, either party may request a temporary order, which governs the situation while the divorce is on file. The temporary order can dictate who will temporarily remain in the house and who must move out. It can also require that certain bills be paid by one spouse, that child support be paid, and that the children have time with each parent.


Q: How Are Debts Divided?

A: Debts can sometimes be the trickiest part of dividing a marital estate, especially if there’s more debt than assets. Typically, a debt will go with the property that secures it. The mortgage usually goes to the spouse who gets the house. Car notes mostly go with the car. Credit cards can be the most difficult and are handled on a case by case basis.


Q: How Is Child Support Calculated?

A: In Texas, child support is calculated primarily based on the payer’s income using state guidelines. There are circumstances where child support may exceed the guideline amount if the proven needs of the child support it. In 2013 the guidelines were updated to apply to the first $8,550 per month of net monthly resources, which equals almost $12,000 per month gross pay for an employed individual.

The difficulty with calculating child support comes when the parties cannot agree on the payer’s income. Overtime, commissions, bonuses, and even a layoff can cause disagreement about the correct number to use as income when applying the calculation.

For more information about Texas Child Support, read Modification of Child Support.


Q: How is property divided in a divorce?

A: In Texas, all the property owned by a married couple is characterized as either community or separate property. Community property is divided as a Judge deems “just and right.” There is no automatic 50/50 division. Separate property is kept by the spouse who owns it. Most property not acquired before the marriage or through specific means during the marriage will be community property. For more information please see our video about dividing property in divorce.


Q: How Much Does A Divorce Cost?

A: Brian McNamara tells every client that the biggest factor in the cost of a divorce is the personalities of the people involved. One couple can agree with what to do with a million dollar house in a single negotiation, while another couple might argue for a year about a $100,000 house. The earlier an agreement is reached, the less the divorce will cost. Gathering information about the couple’s finances can also take time and incur substantial legal fees. The more financial data about your household that you can put together before starting the process, the more money you will save.


Q: Is Property Automatically Divided 50/50 In A Texas Divorce?

A: Absolutely Not. There is no requirement in Texas law that property must be divided 50/50. The law requires a judge to divide the community estate in a just and right division giving due regard to the rights of the parties and the children. Many factors affect the division of property in a Texas divorce and you should not assume that 50/50 is guaranteed or your only option.


Q: Texas is a community property state. Why does ‘fault’ matter?

A: Texas law specifically provides that a divorce may be granted on the basis of ‘insupportability,’ which means without fault, or on the basis of fault. If one spouse is at fault in the breakup of the marriage, that spouse can receive less of the property and the other can be favored in the property division.


Q: What are the requirements for filing a petition for divorce?

A: In Texas, one of the parties must have resided in the state for at least six months and in the county where the divorce is filed for 90 days prior to commencing the action. Texas has a 60-day waiting period before a divorce will be granted.


Q: What Does The Term ‘Child Custody’ Refer To?

A: Most people assume they know what child custody means when it really means different things to different people. Texas law does not use the term “custody.” Instead, legal documents refer to “conservatorship.” Even with Joint Conservatorship, the options vary. Basically, there is no single definition of “child custody.”

It is extremely rare that a parent is given the authority to keep the children from the other parent completely. In some instances, one parent is given authority to make all decisions regarding the children and to decide where they will live. In others, the parents are required to live close to each other and the right to make decisions is shared. Most cases involve some variation between those positions.


Q: What if my spouse refuses to sign the papers?

A: There are only two ways to get divorced: Either with an agreement or after a trial. An agreement must normally be signed by both spouses. If a spouse refuses to sign the papers for any reason, then a trial will be necessary . Even though a spouse may initially refuse to sign the papers, often, as time progresses, an agreement is reached and signed by both parties.


Q: What is a fault-based divorce?

A: A “fault” divorce is one in which one blames the other for the failure of the marriage. In Texas, the grounds for divorce include adultery, abandonment, confinement for incurable insanity for three years, felony conviction and imprisonment for over one year, or cruel and inhuman treatment. The spouse against whom the divorce is sought can use a defense that the divorcing spouse condoned the behavior, but the court will only allow that defense if there appears to be a good chance of reconciliation between the parties.


Q: What is a legal divorce?

A: A divorce is a method of terminating a marriage between two individuals. From a legal standpoint, divorce will give each party the legal right to marry someone else, to divide and share marital assets and debts, and to determine matters related to the care and custody of their children. In Texas, divorces are either fault-based or no fault.


Q: What is a legal separation?

A: A legal separation deals with property distribution and child support and custody issues without ending the marriage. While most states have some form of legal separation, Texas does not. In Texas, temporary orders concerning marital issues can be granted while a divorce is pending, but there is no provision for an indefinite legal separation.


Q: What is a no fault divorce?

A: Traditionally, divorce was granted only in cases of marital misconduct such as adultery or physical abuse. In these cases, the “guilty” spouse was punished by getting a smaller share of the couple’s property or being denied custody of their children while the “innocent” spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce both parties agree that there is no “fault” involved. In Texas, married couples can get no fault divorces if the marriage has become “insupportable” because conflict has destroyed the legitimate ends of the relationship. No fault divorces can also be granted if a couple has been living separately without cohabitation for three years.


Q: What Is A Temporary Order In Divorce?

A: After a divorce is filed, either party may request a temporary order, which governs the situation while the divorce is on file. The temporary order can dictate who will temporarily remain in the house and who must move out. It can also make provisions to make sure that certain bills are paid and that the children spend time with each parent. A temporary order is not always required; many divorces are concluded without ever having a temporary order. Often, a temporary order is agreed to between the parties and lawyers without having a hearing. In some cases, emotions are too heated and raw to make agreement, and the Judge is asked to listen to evidence and impose a temporary order.


Q: What is an agreed divorce?

A: In Texas, if the couple agrees on the terms of the divorce, they can sign an Agreed Divorce Decree, which the Judge will usually sign after about five minutes of testimony by one spouse.


Q: What Is Standard Visitation?

A: The Texas Family Code provides that, in most instances, when the parents cannot agree on a visitation schedule and a Judge must make the decision, the Judge must first consider the Texas Standard Possession Order or S.P.O. In some cases, the Judge can deviate from the S.P.O. but must always consider it first. If the judge determines that the S.P.O. is not best for the children, he or she may deviate from it.

The S.P.O. can be found on the child custody page of this site. Many people overlook the first few lines of the S.P.O. which provide that each parent will have the children at all times that the parents mutually agree. The S.P.O. only becomes effective when parents cannot agree. For that reason it is very detailed.


Q: What is the difference between maintenance and alimony?

A: Each word refers to the same concept – one spouse providing funds to the other. The legal term in Texas is “maintenance,” which are regular, court-awarded payments from the future income of one ex-spouse to support the other. Such payments are not often awarded. The court will consider a range of legal factors when determining maintenance.


Q: Who Makes Decisions About The Children After Divorce?

A: The Texas Family Code has a series of sections about the rights and duties of the parents with regard to the children. Most are uniformly included in all agreements and orders. The rights and duties in section 153.132 are the most important. Of those, the most likely to be a source of future problems if any problems occur, are:

  • The right to determine the child’s primary residence (where the child lives);
  • The right to make medical and psychological decisions; &
  • The right to make educational decisions.
  • The rights and duties can be awarded all to one parent, shared equally, awarded jointly, or even awarded independently.

Q: Will I Have To Go To Court?

A: Most divorces are resolved by agreement, without the need for a trial. In those cases, at least one spouse must testify for about five minutes to answer basic questions that mostly require yes or no answers. If temporary orders are necessary, an evidentiary hearing requiring testimony might be necessary. Even when temporary orders are necessary, an agreement is often reached that negates the need for a court hearing.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.