With more than 75 years of Combined experience and hundreds of cases successfully handled, we at Scroggins Law Group have the knowledge and skills required to tackle even the most complex matters. Over the years, our Collin County family attorneys have noticed that many of the men and women we serve have similar kinds of questions and concerns. To better assist our clients, we have collected a list of some of the most commonly asked questions brought to our firm and provided the answers below for your benefit.
General divorce questions and the divorce process
Unfortunately, every person has a different answer to that question. Are the problems that you and your spouse are having something that counseling might help? Are their trust issues? Do one or both of you have drug or alcohol problems? Is one party a spender and the other is a saver? Has someone committed adultery?
My first suggestion is to talk to a therapist to determine what you really want. If you want to try to save your marriage, you should take the steps to try to do so. That way, if you cannot make the marriage work, you know you have tried and the likelihood of having a bunch of second thoughts or regrets is minimized.
The bottom line is that you will know when it is the right step to take.
If one spouse wants to get a divorce, they can do so regardless of the other person’s desires. Texas still has fault bases for divorce, but they also have no-fault bases for divorce. So, you can get a divorce regardless of fault which means, if you want a divorce, you can get a divorce.
It all depends on how much of a fight there is. The quickest that a divorce can be granted in Texas is 61 days after the date the divorce petition was filed. However, that is extremely rare that a divorce is completed that quickly. If there are any disagreements about child custody matters or property division, the likelihood that a divorce will be completed within a period of two months is virtually nonexistent.
A divorce can be completed in Texas in as little as 61 days after filing the original petition for divorce. The complication is that most of the time cases are not truly uncontested. To be truly uncontested, it means that both parties agree on everything. That is more than a little unusual in divorce.
A divorce generally consists of issues surrounding child custody and division of the marital estate. Depending on what portions of the divorce proceeding are contested in the positions of the parties is going to determine what steps are necessary to take. For example, it is extremely common that a temporary order hearing is scheduled where in the court determines on a temporary basis, conservatorship, who live Where, who pays for what, possession and access of the children and what other steps need to be taken between the temporary order hearing and a final trial. A court might order a child custody evaluation if child custody is disputed, or the judge might appoint an amicus attorney. If there is a business involved, a business valuation might be necessary. If the parties don’t agree on the fair market value of the marital residence, it might be necessary to value that as well. If there are commingled assets, you will likely need to hire a forensic accountant to trace accounts and investments to determine what portion are community and what portion are separate.
In your initial in your initial consultation with your attorney, it is imperative that you address all of the issues in your matter and what you anticipate will be disputed.
Your attorney, paralegal and other legal staff are present to shepherd you through the divorce process. You provide the facts of the case, your legal staff will provide the legal knowledge and together, you will design a strategy to achieve your goals.
Your main role is to provide the factual information upon which the attorney relies in crafting a strategy to achieve your goals. It is incredibly important that you are up front and honest with your attorney about everything. You only harm yourself and your case when you fail to provide certain information to your client.
No. An attorney can only represent one party to a divorce.
Everything discussed between attorney and client is protected by the attorney-client privilege and may not be disclosed to anyone outside of that attorney’s law firm without the express consent of his or her party. If a third party is present during any of these communications, said communication is no longer protected by the attorney-client privilege.
“No fault” divorce simply Means that the divorce is not granted based on fault. The most common fault bases for divorce are adultery and cruel treatment. There are others such as abandonment, confinement in a mental hospital and others that are available but far less common. Talk to your attorney about the specific circumstances of your case to learn if there are other fault bases for divorce that apply.
Property Division Questions
It presumes that all assets and debts that are acquired during the pendency of a marriage, whether in your name, your spouse’s name or both of your names are jointly owned and subject to division upon divorce.
The court is tasked with dividing marital property in a just and right manner. The court is going to take into consideration issues including but not limited to fault of the parties, “bad acts” (such as drug or alcohol abuse) and disparity in earning capacity.
Debts are divided in the same manner in which assets are divided; in a just and right manner. On a practical note, debts typically are awarded to the party incurring same.
If the house was purchased during the marriage and both parties can afford to keep it by themselves, it is typically going too be awarded to the party with whom the children reside more than 50% of the time.
It varies. However, it is becoming more and more common to have possession schedules for animals.
If the business was started during the marriage, it is subject to division just like any other asset. The business can be divided in kind where each party is awarded a certain percentage of the business, it can order to be sold or one party can be ordered to buy out the other party.
If a business is started during the marriage, it is going to be divided. The only way to avoid that would be to enter into a partition agreement or post-nuptial agreement that makes the business the separate property of one of the spouses, thus keeping it from being divided upon divorce.
Spousal Division Questions
You can agree to alimony on a contractual basis, but a court cannot award alimony. Texas’ limited version of alimony is known as spousal maintenance.
There are basically two ways that a court can award spousal maintenance: a. if the court finds there has been family violence within the previous two years since filing the divorce petition, or b. if the parties have been married for over 10 years and one of the parties has not worked during that time and will not receive enough from the marital property division to meet their, “ reasonable minimum needs.” So, it is pretty limited and not typically awarded.
It is calculated based on the years of marriage and has a sliding scale.
An award of temporary spousal support during a divorce is pretty common if there is a disparity in earning capacity and one party needs help to make ends meet.
The longest spousal support will last is during the pendency of the lawsuit. The longest that spousal maintenance will last is determined by the minimum amount of time a court determines it is necessary to help that individual get back on their feet after the divorce.
Typically, you can still receive coverage through COBRA.
In the vast majority of cases, yes.
If spousal maintenance was ordered by the court, it can be modified if there is no longer an ability to make the payments or if the person receiving payments got remarried, cohabitated or does not “need” the funds to be able to meet their minimum reasonable needs.
Child Custody Questions
It is presumed in Texas that parents should be named joint managing conservators. That does not mean that they have equal rights and duties or equal possession of the children. It simply means that both parents are involved in making child-rearing decisions for the children. Parents can also be named sole managing conservator or possessory conservator. Sole Managing Conservators have certain exclusive decision-making rights such as educational decisions, psychological or psychiatric decisions or non-emergent medical care (this is not an exclusive list). Possessory conservators do not have those rights.
You file a petition to modify alleging that there has been a material and substantial change in circumstances of one of the parties or children since the rendition of the previous order.
The court will look at what change has taken place and why any proposed change would be in the best interest of the child.
By statute, a court forbidden from considering gender when making a child custody decision. From a practical standpoint is that always followed? No. They are judges that have reputations of being a “mommy” or “daddy” judge. You should ask your attorney about the judge of your court and any propensities they have in that regard.
Children over the age of 12, and sometimes younger if they are mature, can express a desire of with whom they would like to live. However, that is just one piece of evidence for the judge to consider when making a child custody determination.
If a party is the sole managing conservator of the children and thus, does not have a geographic restriction controlling where the child can live, that parent can move as he or she sees fit. If there is a geographic restriction prohibiting a party from moving a child outside of a specific county or county contiguous thereto, that party would need to file a petition to modify the geographic restriction and explain why such a move is in the child’s best interest.
Temporary Orders are put in place in the vast majority of child custody matters. That temporary order is what governs conservatorship and possession and access during the pendency of the lawsuit until there is a final determination on all issues.
A court will order a child custody evaluation frequently when custody is contested between the parties
It all depends on the scope of the evaluation being performed. Generally, the evaluator is going to interview the parties, observe the parties with the children and interview collateral witnesses in making a determination or what conservatorship, possession and access and right and duties are in the best interest of the child.
Child support last until a child turns 18 and graduates from high school. If a child is still in high school after the age of 18, child support continues until the child graduates as long as they are in a program leading toward graduation.
Not usually. A step-parent will only be able to get possession and access of a stepchild based on the good graces of the parent or if petitioning the court for conservatorship, which is rare.
A contested divorce is the kind of divorce where both parties cannot amicably agree about how to settle their divorce. Perhaps they do not agree on matters such as child custody, child support or spousal maintenance. Contested divorces are notorious for being lengthy and emotionally draining. Our firm predominantly handles contested divorces and provides the aggressive and relentless representation merited by these cases.
While many individuals choose to file for divorce on their own, we highly discourage others from doing so. Filing for divorce without legal assistance can unnecessarily place your rights and interests in danger. This is especially true in the case of contested divorces. You need to have a passionate and tough advocate on your side who will fiercely protect your rights in court.
It is impossible to predict exactly how a family law court judge will rule regarding spousal maintenance because a variety of factors are taken into consideration. In the state of Texas, spousal maintenance is decided by taking a look at the length of the marriage and whether the spouse seeking maintenance has received enough in the property division of the divorce to meet his/her minimum reasonable needs. In other words, it is very subjective. However, your chances of obtaining spousal maintenance greatly increase when you have experienced, aggressive, legal representation.
Texas is a “community property” state, so all assets and debts acquired during the pendency of the marriage are considered “community”. Any assets that were owned prior to marriage, obtained through inheritance or acquired by gift are “separate property” Why is this important? Because a judge cannot divide separate property, only community. So, how will things be divided? The judge is required by statute to make a just and right division to the community property. This division can be influenced by disparity in earning capacity, education of the parties, fault in the breakup of the marriage, as well as other factors. Contact us to learn more about property division in Texas.
Unfortunately, legal separations are not recognized in the state of Texas. This means that couples who need space to re-evaluate their marriage have limited options to legally protect themselves during this uncertain time.
However, they do have some options. Partition and exchange agreements and suits affecting parent-child relationship (SAPCR) can be used to settle financial and child custody matters if a couple decides to establish separate residences while still remaining married. Contact us to learn more about these legal actions.
Less than 1% of attorneys in the state of Texas are board certified in family law. To become board-certified in family law by the Texas Board of Legal Specialization, the certified attorney must have practiced family law extensively for years and demonstrated an expert grasp of this area of the law, coupled with vast courtroom experience. If the attorney can meet the qualifications, and receive the necessary peer review attesting to his/her skill in family law, he/she then must take a comprehensive test encompassing all facets of family law. Board certification also requires heightened legal education beyond what is required of attorneys who are not board certified. This high level of specialization is a mark of excellence, one that few practicing attorneys in Texas possess. Our firm is proud to be led by a board certified family law specialist in Mark L. Scroggins.
Our firm has a reputation for delivering high-quality legal representation that strikes a delicate balance of being both aggressive and compassionate. We genuinely care about the needs and goals of our clients, which is evident in our staunch pursuit of a positive outcome in court. Our efforts have earned us the respect of our peers and various honors such as inclusion in the Super Lawyers list. Should you choose to hire us, you can feel peace of mind in knowing you have an expert legal team on your side.
Contact us with additional questions
We can provide you with the answers you need in order to feel at ease over the decisions you make for yourself and your family. Our team is prepared to help you get the best results possible. Our family attorneys represent clients throughout Collin County, including Highland Village, Allen, Lewisville, McKinney, Plano and Frisco.