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Frequently Asked Questions

  • Family Law

    • What is a common-law marriage in Texas?

      Common law marriages are referred to as “informal marriages” in Texas. To be considered an “informal marriage,” you must answer “yes” to the following questions:

      • Is there an agreement to be married?
      • Are you living together in Texas?
      • Have you represented to others that you are married?

      However, there are nuances with even these straightforward questions. For example, what if one party maintained a separate residence during the relationship? Do you introduce each other as a spouse? Consult a San Antonio attorney for specific questions regarding your situation.

    • Do I need a prenup?

      You don’t have to have considerable wealth to benefit from a pre-nuptial agreement. Instead, a premarital agreement can help a couple keep the property, income, and debts separate. Conversely, it can even make individual property community property. 

      Premarital Agreements are often used by couples that have children from a previous marriage and want to protect assets for their children from an earlier relationship.

      A pre-nuptial agreement is necessary if a couple would not agree with how Texas law would divide the property, income, and debts after the divorce.

    • Can I record a phone call in Texas without telling the other person on the line that the conversation is being recorded?

      It depends on which state both parties are located in.

      For example, if both parties are in Texas, only one party in the conversation needs to know that the call is being recorded. 

    • Does Texas recognize legal separation?

      A “legal separation” does not exist in Texas. However, after a divorce is filed, a temporary order can dictate who will remain in the house and which party will be responsible for specific bills. 

      Additionally, a temporary order can dictate that one spouse will pay child support to the other, and it can outline temporary visitation rights for the non-custodial parent.

    • In Texas, is marital property automatically divided 50/50?
      Texas law does not insist that property must be divided equally. Instead, a judge will divide the community estate into a “just and right” division.
    • What does a “temporary order” mean in Texas?

      Texas law does not recognize “legal separations.” Instead, after a divorce is filed, either party may request a “temporary order,” which determines the temporary situation until the divorce is decreed.

      For example, a temporary order can dictate who will remain in the house, pay what bills, and visitation matters for the non-custodial parent. It’s important to understand that a temporary order is not always required. 

      Also, if the parties involved agree to the temporary order, there may not need to be a hearing. However, some situations are so volatile that a judge is asked to impose a temporary order after listening to the evidence presented.

    • What is a “legal separation?”
      Texas, unlike other states, does not recognize a “legal separation.” Instead, temporary orders concerning marital issues (financial issues, child conservatorship, matters of residence) can be granted while a divorce is pending.
  • Last Will and Testament

    • How do I file a will for probate?
      A will must be filed with the probate court in the deceased’s county of residence. The executor must file for probate four years from the date of death. An estate attorney in Texas can help you with this process.
    • How much time do I have to probate a will?
      Generally, the executor has four years from the death date to probate a will in Texas. Once the will is filed, there is a 10-day waiting period, allowing others to challenge the will before the courts move forward to confirm its validity.
    • How do I probate a lost will?
      To probate the estate with a lost will, you’ll likely need to find someone who was one of the original witnesses to the will who does not have any financial interest in the estate. However, proving the contents of a lost will may be time-consuming and expensive.
    • Can I contest a will in Texas?

      Contact a probate attorney to contest a will. A will can be challenged in Texas for one of the following reasons:

      • Lack of testamentary capacity: The person who wrote the will didn’t understand the consequences of their actions.
      • Undue influence: Someone was inappropriately influencing the person creating the will.
      • Due execution: The will was not properly witnessed or signed.
    • Do I need an attorney to probate a will in Texas?

      It is possible to probate a will in Texas without an attorney because of “independent administration.” Independent administration means executors can work with little probate court supervision.

      Even though an individual can probate a will on their own, it’s recommended that you seek the help of an attorney.

    • Is it always necessary to probate a will in Texas?
      If a person dies, leaving behind a will, the executor can only implement its provisions after going through the probate process. However, some assets are automatically transferred to beneficiaries through a trust, joint ownership with a right of survivorship, or accounts with direct payments to beneficiaries.
    • Does divorce have any impact on a will?

      Yes, divorce has an impact on a will in Texas. While the will is still valid, the deceased’s ex-spouse and their relatives will no longer be a part of the will – even if they were included.

      Contact your estate planning attorney to ensure that all the documents are in order whenever a significant life event occurs, such as a birth, divorce, or death.

  • Estate Planning

    • What is estate planning?

      At a basic level, estate planning is the process of managing and disposing a person’s assets in the event the person becomes incapacitated or dies. However, the estate planning process also can be used to preserve your family’s legacy and wealth.

      Estate planning typically involves a will, living trust, power of attorney, or other estate planning documents that will protect your loved ones and make the probate process easier for them.

    • What is the difference between a will and estate planning?
      A will is one part of the estate planning process. A will tells those you leave behind what you want to happen to your assets after you die. A will is a singular legal document, while estate planning involves multiple legal documents.
    • Can I probate an estate without a will in Texas?
      Yes. Texas has default inheritance rules for when a person dies “intestate” or without a will. If the decedent were married, the assets would be transferred to their spouse.
    • Do I need an attorney for estate planning in Texas?
      You are not legally required to hire an attorney for estate planning in Texas. However, estate law is complicated and can have serious consequences if mismanaged.
    • What if the deceased person owns property in multiple states?
      Two probates may be required if the decedent lived in one state but left solely-owned real estate in another. This means the estate executor may have to open two probate proceedings in two states.
    • Can I remove an executor in Texas?

      Yes, you can attempt to remove an executor in Texas for the following reasons:

      • Flagrant misconduct
      • Failing to perform the duties of the executor
      • Conflict of interest
      • Incapacity

      To remove an executor, one must file a petition with the appropriate probate court and prove a good reason for the removal.

  • Probate

    • What is probate?
      The word “probate” describes the process of settling a deceased person’s outstanding debts and distributing any remaining assets. During probate, a will is “proved” in a court of law and accepted as a valid public document. However, probate also includes settling an estate according to the laws in the state of residence when no legal will is available.
    • How does the probate process work in Texas?

      Here is a simplification of the probate process in Texas:

      1. The will and application for probate are filed with the court in the decedent’s last county of residence.
      2. A probate court hearing is held. During this time, the judge confirms that the person applying to be the executor is fit to serve and legally recognizes the will as valid.
      3. The executor inventories, appraises, and sells the deceased person’s estate assets and notifies beneficiaries of the will. They also post a notice to interested creditors, pay debts, file the decedent’s final federal tax return, and settle the estate.
      4. Disputes are resolved.
      5. Estate assets are distributed to the beneficiaries.
    • What happens during a probate hearing in Texas?

      A probate judge will recognize and confirm the decedent’s death. In addition, the judge confirms that the person assigned to be the executor is fit to serve and will verify the will as valid.

      Then the county clerk will issue “letters testamentary” to the executor, which serves as notice that the executor has the authority to act as a representative on behalf of the estate.

    • What are the benefits of hiring a probate attorney?
      A probate attorney will look after your best interest to ensure you receive payments for debts from an estate if you are a creditor or assets from the estate if you are (or should be) a beneficiary.
    • How do I schedule a hearing for a probate case?
      Probate hearings are held in the deceased’s last county of residence. To schedule a hearing, you must contact the probate court in that county. However, most individuals utilize probate attorneys to help complete the process. In that case, the probate attorney will schedule the hearing.
    • Is probate required in Texas?

      Probate may be required in Texas under the following circumstances:

      • An individual with considerable assets dies without completing estate planning
      • A party contests a will

      Probate is not necessary under the following circumstances:

      • Property of the deceased was held as joint tenancy with the right of survivorship
      • Community property was held with the right of survivorship
      • Bank accounts were set up to be “payable on death”
    • What does a probate lawyer do?

      A probate lawyer can help with the following tasks:

      • Represent the executor or administrator of an estate
      • Make all appearances in front of the Texas probate judge
      • File all required probate applications with the court
      • Catalog and appraise all assets
      • Prepare and send out notices to the estate’s creditors
      • Make arguments during probate proceedings
      • Help contest a will if needed
    • How long does probate take to complete?
      The time it takes to complete probate in Texas depends on the case’s complexity. A simple estate may be resolved in six months or less. However, probate cases may take more than a year if a will isn’t found, doesn’t exist, or is contested.
    • How are probate taxes handled in Texas?
      There is no estate tax or “probate” tax in Texas. However, the estate executor may have to pay federal taxes for the deceased before distributing the assets to the beneficiaries.
    • What are the disadvantages of probate?

      Probate can be a long, complicated process. There are many disadvantages to going through the probate process, including:

      • Your personal family and financial information may become exposed to the public.
      • Court, attorney, and executor fees are deducted from the estate’s value.
      • Probate can be complicated and stressful for executors and beneficiaries.

      The probate process can be avoided with professional estate planning with a trusted advisor.

  • Adoption

    • Should I adopt my stepchild?

      A step-parent may not make decisions about the child’s health care or have the right to visit the child in the hospital. 

      However, sometimes a step-parent has a closer relationship with the child than the biological parent. If you wish to formalize the relationship with your stepchild into a “permanent legal pond,” you should consider adopting.

    • Can I adopt my stepchild if the other biological parent still has parental rights?
      You may not adopt your stepchild unless the court terminates the child’s other biological parent’s rights.
    • Can I adopt my grandchild?
      If neither parent wishes to retain parental rights, the grandparents can adopt the child. If the child’s parent doesn’t want to or cannot serve in a parental role, the court may award temporary or permanent conservatorship to the grandparent.
    • Can I adopt the baby of a pregnant woman who is willing to give up her baby to me?
      Yes, but this process requires the assistance of an experienced adoption lawyer in Texas. Even if parties agree to the adoption, there are many state laws to consider regarding the health and welfare of the child.
  • Child Support

    • Can child support be modified months or years later?

      Child support orders in Texas can be modified under the following conditions:

      • The child support order was put in place or last changed more than three years ago
      • The amount calculated under Texas Family Code guidelines varies by 20% 
      • A “material and substantial” change has happened since the previous child support order was established
    • How is child support calculated in Texas?
      The Texas court system calculates child support based on the payer’s income. However, sometimes the parties involved cannot agree on the payer’s income, as it may fluctuate with overtime earnings, commissions, bonuses, or (conversely) a layoff.
    • How does wage withholding work?
      If the court orders child support payments, that money may be withheld from the person’s paycheck paying child support. That means that the employer of the person who pays is ordered to withhold the necessary funds.
  • Uncontested Divorce

    • What is an uncontested divorce?
      An uncontested divorce describes one where both parties agree on all divorce-related legal matters, including the division of assets and debts. You must also meet legal qualifications (including residency requirements) to be eligible for an uncontested divorce in Texas.
    • Do you have to go to court for an uncontested divorce?
      You do not have to court for an uncontested divorce in Texas. However, one spouse (and their attorney) must be present at a brief hearing.
    • How long does an uncontested divorce take in Texas?
      Once the divorce petition is filed in Texas, there is a 60-day waiting period for the divorce to be finalized. After that, however, there may be an additional waiting period before either party can marry another person.
    • How much does an uncontested divorce cost in San Antonio?
      An uncontested divorce in San Antonio costs between $3,000 and $5,000. The costs depend on how complicated the divorce is to complete and whether there are assets and debts to divide or minor-aged children to consider.
    • How long does it take to get a divorce if both parties agree?
      There is a 60-day waiting period after the divorce petition is filed for a divorce to be complete. However, the process may take longer – even up to one year to go through the court system.
    • What are the advantages of an uncontested divorce?
      An uncontested divorce is faster and cheaper than a contested divorce. However, the cost of the divorce is determined by many factors.
    • What are the disadvantages of an uncontested divorce?
      The agreed-to terms may not be fair to both parties in an uncontested divorce. An uncontested divorce isn’t a good idea if there is an imbalance of power in the relationship or if there is a history of physical or emotional abuse.
    • What happens at an uncontested divorce hearing?
      Uncontested divorce hearings are typically short. The judge will ensure the couple has complied with all applicable requirements for obtaining the divorce and will review the divorce decree.
    • How do you file for an uncontested divorce in Texas?
      Even if you and your spouse agree to the terms of a divorce, it’s recommended that you work with a family law attorney to file for an uncontested divorce in Texas. Hiring an attorney is especially important if you have assets or debts to divide or minor children.
    • What is the difference between an uncontested and contested divorce?
      A contested divorce typically describes one where the parties can not agree on one or several vital issues, such as the division of assets and debts or matters involving child custody. Additionally, you must qualify for an uncontested divorce in Texas.
  • Contested Divorce

    • What is a contested divorce?
      A contested divorce is a one where the parties can’t agree on a legal issue – such as the distribution of assets and debts or child custody matters. In Texas, specific qualifications are required for a divorce to be considered uncontested. The couple must undergo the contested divorce process if those requirements aren’t met.
    • What are the reasons for a contested divorce?

      There are many reasons for a contested divorce. Some of the most common disagreements include the following topics:

      • Division of assets and debts
      • Child custody and visitation matters
      • Spousal support
    • Do you have to go to court for a contested divorce?
      Yes, you have to go to court for a contested divorce. However, if the terms were finalized through mediation, the court visit may be brief.
    • How long does a contested divorce in Texas take?
      Once a divorce petition is filed, there is a 60-day waiting period until a divorce can be finalized in Texas. However, contested divorce cases take longer since mediation or a court visit is required to come to acceptable terms for both parties.
    • What is the difference between a contested and uncontested divorce?
      A contested divorce is one where the spouses can’t agree on a divorce-related legal matter. An uncontested divorce is one where the couple agrees to the terms of the divorce outside a courtroom, and they meet the legal requirements for an uncontested divorce in Texas.
    • How much does a contested divorce cost in San Antonio?
      The average cost of a contested divorce in Texas is $15,600 if no kids are involved. However, if children are involved, the average price of a Texas contested divorce is $23,500.
    • What happens in a contested divorce in Texas?
      The two parties settle the case at some point through informal settlement talks between parties and attorneys or in mediation. If this doesn’t work, a judge or jury will resolve the disagreements in court.
    • How do you file for a contested divorce in Texas?
      Seek the help of a licensed family law attorney in Texas to file for a divorce – whether you both agree to the terms of the divorce or not. A divorce attorney will ensure your best interests are protected and expedite the filing process.
  • Military Divorce

    • What are military spouses entitled to in a divorce in Texas?
      All assets acquired by either spouse during a marriage are considered jointly owned unless the asset was acquired by gift, inheritance, or personal injury settlement or award. However, there are special rules regarding the division of military retirement pay and military medical benefits.
    • What does the 10/10 rule mean in a military divorce?
      The 10/10 rule states that a couple must be married for at least ten years, during which the service member performed at least ten years of military service for the non-servicemember spouse to be eligible to receive a portion of the military retirement pay in a divorce. Additional requirements must be met for the 10/10 rule to be followed.
    • What does the 20/20 rule mean in a military divorce?
      The 20/20 rule states that if a couple was married for 20 years and the service member served at least 20 years, the non-military spouse is entitled to Tricare medical treatment, health insurance, and other benefits.
    • How much does a military divorce cost in San Antonio?
      A military divorce is $3,000 to $5,000 in San Antonio. But, some circumstances may cost more – up to $30,000 for a contested divorce.
    • Can a spouse take your military retirement in a divorce?
      A military spouse is entitled to a portion of military retirement if the couple was married for at least ten years – during which the servicemember performed at least ten years of military service.
    • Can you keep your military ID card after a divorce?
      A non-military spouse could keep a military ID card if married for at least 20 years. In addition, the service member must have served at least twenty years during the marriage. This rule is known as the 20/20 rule.
    • How do you file for a military divorce in Texas?
      Before you file for a military divorce in Texas, at least one spouse must fulfill a six-month Texas residency requirement. If you have met this residency requirement, contact a local family law attorney to learn how to file a divorce petition.
    • How long does a military divorce take in Texas?
      It takes at least 60 days from the date the divorce petition is filed for a military divorce to be completed. However, you should realistically plan for the process to take five months to a year – or longer if the parties can’t agree to the divorce terms.
    • What is the divorce rate in the US Military?
      The divorce rate for active duty military members is 3.1%. This does not include Coast Guard, Reserve, National Guard, or service members divorced after leaving the military.
    • How do you serve military personnel with divorce papers?
      Divorce papers must be personally served on an active-duty service member. The Servicemembers Civil Relief Act (SCRA) states that active-duty servicemembers have an additional 90 days to respond to being served. The military personnel can also request a delay in the process until they return from deployment.
  • Divorce

    • How do I start the divorce process in Texas?

      In Texas, the divorce process is five different lawsuits in one. Because it is best for the Final Decree of Divorce to resolve current and possibly future matters, it is best to receive the help of an experienced San Antonio attorney when filing the Petition. 

      A Final Decree of Divorce states the names of the people getting divorced, jurisdictional claims, the grounds for divorce, property division issues, and the relief sought. Of course, children’s matters are also addressed.

      To file for a divorce in Texas, one of the parties has to have lived in Texas for the past six months. Additionally, one of the parties has to live the last 90 days in the county where the divorce is filed.

    • Can a divorcing couple hire a single attorney?
      A lawyer can only represent one spouse in a divorce case. However, the law does not require that each spouse have a lawyer in a divorce. If one party has an attorney, the other may represent themselves and have the final documents reviewed by an independent lawyer.
    • Do I have to hire a divorce attorney?
      No, the law does not require someone to hire a divorce attorney. In Texas, a spouse can represent themselves in a divorce. However, no one is looking after your best interests if you represent yourself. This is important if there are marital assets or children.
    • Does Texas law provide for maintenance or alimony?

      Alimony and spousal maintenance laws in Texas are complicated. Generally, the marriage must have lasted for more than ten years to qualify. If rewarded, the maintenance often only lasts for up to 36 months. 

      To be awarded maintenance, a person must be unable to provide for their minimum “reasonable needs” either through a job or through the assets awarded to that spouse in the divorce. 

    • How are debts divided during a divorce?
      Debts are handled on a case-by-case basis. However, typically, a mortgage will be transferred to the spouse who gets ownership of the property, and a car loan will go to the spouse who keeps the car. Credit card debt is sometimes tricky to divide – especially when the couple has more debts than assets.
    • How is property typically divided during a divorce?
      All property owned by a couple is characterized as either “community” or “separate” property in Texas.  The judge determines how to divide the community property, which may be a 50/50 division of the asset. Separate property (perhaps inherited property) is kept by the person who owns it.
    • How much does the divorce process cost in Texas?

      The cost of a divorce depends on a variety of factors. 

      Gathering information about the couple’s finances can take time and incur substantial legal fees. So, the more data you can provide to your attorney regarding your assets and debts, the more money you will save.

      Additionally, the personalities of the people involved in the divorce can also determine how much it will cost. For example, San Antonio couples who agree quickly during the negotiation process will save on legal fees. 

    • What are the requirements for filing for divorce in Texas?
      One of the involved parties must have lived in Texas for at least six months. Additionally, one of the parties must have lived in the specific county in Texas 90 days before starting the action.
    • What if my spouse refuses to agree to the divorce?
      There are only two ways to get divorced in Texas. The first way is with an agreement that both spouses sign. However, if a spouse refuses to sign the papers, a trial will be necessary.
    • What are the grounds for assigning fault for a divorce in Texas?
      A “fault” divorce occurs when one party blames the other for the failure of the marriage. In Texas, the grounds for divorce include confinement for incurable insanity for three years, adultery, or abandonment. Fault can also be assigned for an individual with a felony conviction and imprisonment for over one year or cruel and inhuman treatment.
    • What is a no-fault divorce in Texas?
      In a no-fault divorce, both parties agree that no “fault” is assigned in the dissolution of the marriage. In Texas, married couples can get no-fault divorces if the marriage has become “insupportable” or if the married couple has been living apart for at least three years.
    • Why does “fault” matter since Texas is a “community property” state?
      Yes, “fault” can matter in a divorce. If a spouse is at fault for the end of the marriage, that spouse can receive less of the assets when they are divided.
    • What is a “legal divorce?”
      A divorce is a legal process of ending a marriage between two individuals. A legal divorce will give each party the right to marry someone else, divide and share marital assets and debts, and determine matters related to the care and custody of their children.
    • What is an “agreed divorce?”

      If a couple agrees on every aspect of the settlement, including property division and a visitation schedule, they might be eligible for an “agreed divorce.” 

      An “agreed divorce” means that once the parties have settled things on their own, they will hire an attorney to draft the decree. The decree is then signed by both parties and presented to the court.

    • How long does it take to get a divorce in Texas?
      In San Antonio, there is a 60-day waiting period from the date the divorce is filed until a court can grant the divorce. However, if disagreements or complex financial matters complicate the divorce, it will take longer.
    • Is it ok to start dating while my divorce is pending?
      A family law attorney will tell you that dating while a divorce is pending is a bad idea. This may cause your spouse to be more challenging to deal with than otherwise. It also may be difficult for the children.
    • What is the difference between “maintenance” and “alimony” in Texas?
      In Texas, the act of one spouse providing funds to the other spouse following a divorce is referred to as “maintenance.” Maintenance is not often awarded; however, the court will consider various factors when determining if it is appropriate and necessary.
    • If I file for divorce in Texas, will I have to go to court?
      Most divorces are resolved without needing a trial. However, even if both parties agree to the terms, at least one spouse must testify for about five minutes to answer basic questions before the divorce is finalized.
    • Can the court require my spouse to pay for the attorney fees?

      Typically, each person will pay their own attorney. However, the court may sometimes allow one party to use the community property to pay these fees. 

      The court may also equalize the fees between attorneys on both sides so that your spouse can draw out community funds to pay their attorney.

    • Does it matter who files for divorce?
      If the court is necessary, the party who files the divorce papers presents their case first. However, it doesn’t matter who files the documents with the county clerk in most cases.
    • How long will it take to get my divorce finalized?
      There are too many factors to consider to give a definitive answer to this question. The simple answer is this: Texas requires a 60-day waiting period from when the papers are filed before a divorce can be finalized. However, complicated matters and disagreements will prolong the process.
    • Will I have to pay alimony? Do Texas courts award alimony?

      Long-term alimony is very unusual in Texas.

      However, temporary or permanent spousal support will be decided on a case-by-case basis. The court will consider several factors, including the length of the marriage, both spouses’ jobs or job skills, health concerns, and other considerations. 

  • Child Custody

    • What does child “custody” mean in Texas?

      The term “custody” is not typically used in Texas law. Instead, legal documents refer to “conservatorship.” Regardless of the terminology used, each situation is looked at on a case-by-case basis.

      A parent is rarely given the authority to keep the children from the other parent completely. However, in some instances, one parent is given the power to make all decisions regarding the children – including where the children will live. In other cases, the parents must live close to each other, and the decision-making is shared.

    • What is “standard visitation” in Texas?
      If both parties cannot agree on a visitation schedule, a judge must decide. Texas Judges use the Texas Standard Possession Order or SPO, a detailed document outlining visitation matters. A Judge may deviate from the SPO, but they must always consider it first.
    • When will I be able to see my kids?

      The policies set by the State of Texas encourage frequent contact between a child and each parent to develop a close and continuing relationship. For that reason, a “standard possession order” is typically awarded. The standard possession order varies depending on how far apart the parents live. 

      Here’s what a standard possession order looks like for parents living closer than 100 miles from each other:

      • The first, third, and fifth weekend of each month
      • Thursday nights
      • Every other year for spring break
      • Thirty days in the summer
      • 1/2 of Winter Break
      • Alternating years for Thanksgiving
      • At least two hours in the evening on the child’s birthday
      • Father’s Day Weekend for Fathers 
      • Mother’s Day Weekend for Mothers
    • How is custody typically handled?

      Unless there is a history of family violence, there is a presumption that parents will serve as the Joint Managing Conservators of their children. 

      However, it is essential to realize that Joint Managing Conservatorship does not mean that each parent has the children half the time. It also doesn’t mean that child support won’t be awarded.

      To determine what custody arrangement the Texas court is likely to order in your situation, contact an experienced family law attorney in San Antonio.

    • Who makes the critical decisions about the kids after a divorce in Texas?

      The Texas Family Code has sections about the rights and duties of the parents. The rights and responsibilities can be awarded to one parent or shared equally.

      This means that one or both parents can be given the right to decide the child’s primary residence. A judge can also determine who can make medical and educational decisions.

    • Can my child decide where they live?

      The court will not let the child choose where they reside. However, the court may hear a child’s preference during the original proceeding or upon a motion for modification.

      Even if the court interviews the child regarding their preferences, it is still at the court’s discretion to determine their best interest.

    • Can child custody be modified months or years later?

      Texas courts prefer that the parents agree to the custody and visitation of the children. However, if no agreement is reached, the court will issue an order based on what is “the best interest of the child.” 

      There are a lot of factors that are considered, including the unique needs of the child and any other relevant factors – which may change over time.