Answers to some of the most commonly asked family law questions include:
Q. How long does a divorce take?
Q. Where will the case be filed and heard?
Q. How difficult is it to obtain custody of my child?
Q. What is a “board certified” family law attorney and why should I use one or a law firm that employs one?
Q. How much will it cost?
Q. Do I need a “Protective Order” or a “Temporary Restraining Order”?
Q: What is Mediation and how does it affect my divorce?
Q: Do I have to go to court?
Q: What is Collaborative Law?
Q. Since Texas is a “Community Property” state, does that mean that upon divorce everything is divided equally?
Q. Do I need separate tax advice?
Q. How do I get started?
Q: How long does a divorce take?
A: By statute, a divorce cannot be finalized until after at least 60 days have elapsed from the date the original petition is filed. If the case is uncontested it is entirely possible to finalize the case on the 61st day after filing. If the parties cannot reach agreement on all issues, however, finalizing the divorce will take longer.
Q: Where will the case be filed and heard?
A: In divorce cases, the action should be filed in the county in which one or both of the parties resided for the immediately preceding 90-day period. In addition, at least one of the parties must have lived in Texas for the preceding six months. In a modification of a prior final order involving children, the case can be transferred to and heard in the county of current residence of the child.
Q: How difficult is it to obtain custody of my child?
A: Texas law presumes that both parents should be named as “Joint Managing Conservators” of their children. Although this does not necessarily mean that both parties will split parental rights and possession times equally, the presumption that the children will benefit by the active and regular participation of both parents in raising the child is strong. Nevertheless, in certain cases evidence exists or develops that may override the statutory presumption. In such cases, where primary custody is disputed, we will aggressively pursue the best interests of the children by empowering the judge or jury to render a decision based upon what the facts reveal rather than what facts are concealed or unknown.
Q: What is a “board certified” family law attorney and why should I use one or a law firm that employs one?
A: While there are many fine attorneys who practice in the area of family law their entire careers without becoming board certified, there are potential advantages to the client who chooses to retain a board certified attorney or a firm that employs a board certified attorney: The client may rest assured that the attorney has already demonstrated substantial experience and involvement in the specialty area, and is committed to excellence in the practice of family law. Perhaps more importantly, because of that experience and involvement, the board certified attorney may be able to handle complex issues more efficiently than another attorney, thereby saving the client time, aggravation, and money.
At Albin Roach, we have a team of attorneys who work extensively in the field of family law. When a client retains us, we bring all of our resources to bear on the client’s case to ensure that the client receives the highest quality of professional legal services that we have to offer.
Q: How much will it cost?
A: The projected costs of a family law case are typically discussed with the client during the initial consultation. Because it is difficult to determine costs from the onset of a case we quote a competitive retainer and our contract provides for costs that exceed the initial retainer.
Q: Do I need a “Protective Order” or a “Temporary Restraining Order”?
A: Each case is fact specific and the attorney will discuss the benefits and costs of all pertinent options with the client during the initial interview. In general, however, if there has been family violence or threatened family violence in the recent past and there is a continuing threat of future violence, then you should consider contacting either your local police department or a family law attorney immediately to obtain a Protective Order. A Protective Order will temporarily grant you and the children legal protection from the offending family member. The penalties for violating a Protective Order are criminal in nature, subjecting the violator to immediate arrest and possible prosecution.
A Temporary Restraining Order may be appropriate if you have concerns about the other family member’s spending habits, use of marital property, or if the other spouse presents a disruptive or negative influence on the children’s daily routine. The penalties for violating a Temporary Restraining Order include invoking the contempt powers of the court, which can result in monetary fines and jail confinement.
Q: What is mediation and how does it affect my divorce?
A: Mediation is one alternative method to resolve your case without the necessity of a contested final trial. Through a one or two-day conference, the parties negotiate with the assistance of their attorneys and a neutral third party, who is dedicated to helping the parties reach a resolution. No one can or will force either party to compromise or settle, but if the parties do, in fact, reach an agreement, it is immediately reduced to writing, signed by the parties and their attorneys, and then filed with the Court. Once the agreement is signed, it becomes binding and enforceable. Laura Roach is a trained and experienced family law mediator.
Q: Do I have to go to Court?
A: Most cases resolve by agreement of the parties prior to a contested final trial. It is therefore possible to go through the entire divorce process without ever having to step inside the courthouse. However, even in these cases, at least one party will have to make a brief, uncontested, court appearance to obtain the judge’s signature on the final documents.
Q: What is Collaborative Law?
A: Collaborative Law is an alternative method of resolving disputes without the use of a judge, jury, or even a courtroom. It is a process in which both parties retain separate lawyers whose only job is to help the parties settle their disputes. The dispute is handled more like a business negotiation than a boxing match. All of the participants agree to work together, and to be respectful, honest and to participate in good faith to try to reach an agreement.
Q: Since Texas is a “Community Property” state, does that mean that upon divorce everything is divided equally?
A: No. If the parties cannot negotiate a fair division with the help of their respective attorneys the judge or jury will divide the marital assets and liabilities in a manner that is “just, right, fair and equitable.” That may result in a 50/50 division; it may result in a 60/40 division, or some other division. There are many factors that the fact finder may consider, including disparity in earning capacities between the spouses and evidence of fault in the breakup of the marriage.
In addition, not all property is subject to division by the court. As a general rule, property that a spouse owned before marriage, or obtained by gift or inheritance during the marriage, belongs to that spouse as his or her separate property. This kind of property is generally not included in the division of the marital estate.
Q: Do I need separate tax advice?
A: Albin Roach always recommends that a client obtain competent tax advice before making any significant financial decisions. Our firm works closely with our clients’ tax consultants to ensure that the legal advice our firm provides harmonizes with the tax advice received from our clients’ tax specialists.