Family Law, Divorce, Child Support
We offer representation in all types of family law matters, including divorce, modifcations, child custody, stepparent adoption, child support, and name changes. We practice primarily in Collin, Denton, and Grayson counties, including the communities of McKinney, Plano, Allen, Frisco, Denton, and Sherman.
For divorces, we encourage the use of the collaborative process whenever appropriate. This is a unique approach to resolving the inevitable conflicts that arise in ending a marriage. By agreeing not to go to court, the parties create a framwork that is safer and less damaging than the tradtional litigation process. It is especially beneficial to families with children. Please contact us for further information on collaborative divorce, or see the Collaborative Law Institute of Texas website.
For all family law matters, the process begins with an initial consultation with the attorney. Please call us at 972-384-1102 to schedule.
What are the steps of obtaining a divorce in Texas?
Every divorce is different, but every divorce in Texas must follow a basic process:
1)
Filing of a petition. This is the document that starts the legal process of divorce. The party who files the petition is called the “Petitioner.” The other party is called the “Respondent.” It doesn’t matter who files first. Everyone’s property and parental rights remain the same, whether you’re the Petitioner or Respondent. The petition must be on file for 60 days before the divorce can be final.
Filing of a petition. This is the document that starts the legal process of divorce. The party who files the petition is called the “Petitioner.” The other party is called the “Respondent.” It doesn’t matter who files first. Everyone’s property and parental rights remain the same, whether you’re the Petitioner or Respondent. The petition must be on file for 60 days before the divorce can be final.2)Service of process on the Respondent. The other party has to know that the petition has been filed, and the court has to know that they received a copy. There are three ways to accomplish this:
Service of process on the Respondent. The other party has to know that the petition has been filed, and the court has to know that they received a copy. There are three ways to accomplish this:a.Formal service of process. A constable or private process server finds the Respondent, hands him or her a copy of the petition, then reports back to the court that he has done so.
Formal service of process. A constable or private process server finds the Respondent, hands him or her a copy of the petition, then reports back to the court that he has done so. b.Waiver of service. The Petitioner or attorney delivers a copy of the petition to the Respondent, in person or by mail. The Respondent signs a document called a “Waiver of Service of Process” in front of a notary, and returns the form to the Petitioner. The Petitioner’s attorney files the document with the court.
Waiver of service. The Petitioner or attorney delivers a copy of the petition to the Respondent, in person or by mail. The Respondent signs a document called a “Waiver of Service of Process” in front of a notary, and returns the form to the Petitioner. The Petitioner’s attorney files the document with the court.c.Filing of an answer. If the Respondent hires an attorney, the attorney will usually just file an answer with the court, indicating that they have received the petition and are “making an appearance” with the court.
Filing of an answer. If the Respondent hires an attorney, the attorney will usually just file an answer with the court, indicating that they have received the petition and are “making an appearance” with the court. 3)Issuance of standing order. Most counties in north Texas have what are called “standing orders” that apply to all family law cases. This order is attached to the petition and applies to both parties as soon as the case is filed. Basically, the order requires everyone to act like grownups. It prohibits hiding property, interfering with the children, verbal and physical abuse, and other bad behavior that people going through divorce tend to engage in.
Issuance of standing order. Most counties in north Texas have what are called “standing orders” that apply to all family law cases. This order is attached to the petition and applies to both parties as soon as the case is filed. Basically, the order requires everyone to act like grownups. It prohibits hiding property, interfering with the children, verbal and physical abuse, and other bad behavior that people going through divorce tend to engage in.4)Temporary Orders. Many divorce cases require what are called “temporary orders,” which are orders that apply while the divorce is pending. Many attorneys include a request for temporary orders in the petition. Usually, the courts are able to hold a hearing on temporary orders within a short time (two to three weeks) after the petition is filed. These hearings are usually short (in Collin County, temporary orders hearings are limited to twenty minutes for each side), and cover issues such as where the children will live, who will stay in the home, and child support.
Temporary Orders. Many divorce cases require what are called “temporary orders,” which are orders that apply while the divorce is pending. Many attorneys include a request for temporary orders in the petition. Usually, the courts are able to hold a hearing on temporary orders within a short time (two to three weeks) after the petition is filed. These hearings are usually short (in Collin County, temporary orders hearings are limited to twenty minutes for each side), and cover issues such as where the children will live, who will stay in the home, and child support. 5)Information-gathering. The next step is to gather information. This can be done informally, by both parties providing all the information requested by the other side, or formally, through a legal process called “discovery.” Each party sends the other party lists of questions, called “interrogatories,” and requests to produce documents. The attorneys may request a “deposition,” which is an opportunity to question the other party in person, under oath and with a court reporter present. If children are involved and there is a dispute over possession or conservatorship, then the parties may have to pay for a “social study.” An expert, usually a social worker or psychologist, will visit both homes, interview the adults and children, and provide a report to the attorneys and the judge. If a family business is involved, the parties may have to hire a business evaluator to determine the value of the entity. Tax, real estate, or financial professionals may need to be consulted to help determine the appropriate division of the property.
Information-gathering. The next step is to gather information. This can be done informally, by both parties providing all the information requested by the other side, or formally, through a legal process called “discovery.” Each party sends the other party lists of questions, called “interrogatories,” and requests to produce documents. The attorneys may request a “deposition,” which is an opportunity to question the other party in person, under oath and with a court reporter present. If children are involved and there is a dispute over possession or conservatorship, then the parties may have to pay for a “social study.” An expert, usually a social worker or psychologist, will visit both homes, interview the adults and children, and provide a report to the attorneys and the judge. If a family business is involved, the parties may have to hire a business evaluator to determine the value of the entity. Tax, real estate, or financial professionals may need to be consulted to help determine the appropriate division of the property.6)Resolution of Issues. Usually, the parties agree on many issues, but still have some problems they can’t resolve. There are several ways such differences are resolved in divorce cases:
Resolution of Issues. Usually, the parties agree on many issues, but still have some problems they can’t resolve. There are several ways such differences are resolved in divorce cases:a.Informal settlement discussions. The attorneys or the parties may write letters, exchange e-mails, talk on the phone, or meet in person to resolve the issues. This is how the vast majority of divorce settlements are reached.
Informal settlement discussions. The attorneys or the parties may write letters, exchange e-mails, talk on the phone, or meet in person to resolve the issues. This is how the vast majority of divorce settlements are reached. b.Mediation. The parties and their attorneys sit down with a neutral third party who helps them identify the points of agreement and disagreement and come to a resolution. The mediator does not make decisions; the parties retain control of the process and any agreement. Ideally, a mediation results in a “mediated settlement agreement” which resolves all issues in the divorce.
Mediation. The parties and their attorneys sit down with a neutral third party who helps them identify the points of agreement and disagreement and come to a resolution. The mediator does not make decisions; the parties retain control of the process and any agreement. Ideally, a mediation results in a “mediated settlement agreement” which resolves all issues in the divorce.c.Judicial hearing. If the parties and their attorneys are not able to reach an agreement on one or more issues, then either party may request a hearing or trial in front of the judge (or in some cases, a jury). This is a formal process where evidence is presented, witnesses testify under oath, and the judge makes a decision which is binding on both parties.
Judicial hearing. If the parties and their attorneys are not able to reach an agreement on one or more issues, then either party may request a hearing or trial in front of the judge (or in some cases, a jury). This is a formal process where evidence is presented, witnesses testify under oath, and the judge makes a decision which is binding on both parties. 7)Preparation of a Final Decree. Most divorce cases end when the parties have finally agreed on all issues, or when the judge has ruled on the issues they could not resolve. These terms are written up in a document called a “decree.” It contains many provisions that are required by statute, as well as the terms the parties have agreed to. Final decrees can be very long, as they detail the parties’ rights and duties regarding the children, the possession schedule, and disposition of all property.
Preparation of a Final Decree. Most divorce cases end when the parties have finally agreed on all issues, or when the judge has ruled on the issues they could not resolve. These terms are written up in a document called a “decree.” It contains many provisions that are required by statute, as well as the terms the parties have agreed to. Final decrees can be very long, as they detail the parties’ rights and duties regarding the children, the possession schedule, and disposition of all property. 8)Prove up. If the Decree is agreed to without a trial, then one party still needs to appear in front of the judge to “prove up” the divorce. A prove-up is essentially a very short trial, with one witness who confirms that the Decree contains the agreement of the parties. The court grants the divorce, signs the decree (which then becomes the order of the court), and the divorce is final.
Prove up. If the Decree is agreed to without a trial, then one party still needs to appear in front of the judge to “prove up” the divorce. A prove-up is essentially a very short trial, with one witness who confirms that the Decree contains the agreement of the parties. The court grants the divorce, signs the decree (which then becomes the order of the court), and the divorce is final.9)Post-divorce matters. After the decree is signed, there are usually some other matters to be handled. If there is child support ordered, an account is set up with the Child Support Division of the Office of the Attorney General (OAG). If a retirement account, such as a 401K, was divided, the parties must obtain a “Qualified Domestic Relations Order” (QDRO) to send to the plan administrator. If there was a transfer of real estate, the deed must be filed with the county clerk.
Post-divorce matters. After the decree is signed, there are usually some other matters to be handled. If there is child support ordered, an account is set up with the Child Support Division of the Office of the Attorney General (OAG). If a retirement account, such as a 401K, was divided, the parties must obtain a “Qualified Domestic Relations Order” (QDRO) to send to the plan administrator. If there was a transfer of real estate, the deed must be filed with the county clerk.There are many other twists and turns a divorce can take. Sometimes restraining orders are necessary to prevent family violence or destruction of property. Sometimes the parties may have more than one hearing to determine issues involving the children or property. In a Collaborative Divorce, the information-gathering and issue-resolution steps look very different. But this is the basic legal process of getting divorced in Texas.
Copyright 2011
Melanie K. Morgan, Attorney & Mediator, PLLC
972-384-1102
McKinney, Texas Click here to add text.
Ten Tips on Hiring a Divorce Attorney
For most of us, our divorce attorney is the only attorney we will ever hire. So where do you begin? What questions do you ask? How can you tell a good attorney from a bad one? Below are some suggestions to help you in the process:
1) Ask for recommendations. Many clients find an attorney by doing a web search. That's great, but also ask friends, relatives, and colleagues for recommendations. It's especially helpful to ask people who've been through a divorce what attorney they used, and what their impression was. I like to ask attorneys who practice in a different area whom they recommend - often they know each other through the local bar association, and can point you in the right direction.
That being said, take all recommendations with a healthy dose of perspective. Everyone's divorce costs more and takes longer than they want it to! So keep that in mind.
2) Check with the State Bar. In Texas, go to the State Bar of Texas website and you can look up any attorney by name or state bar i.d. number. That will tell you whether the attorney is in good standing, and if any grievances have been filed against him or her.
3) Find a specialist. You wouldn't ask your dermatologist to deliver your baby; don’t ask your tax attorney to handle your divorce. Find a lawyer who does a lot of family law cases on a regular basis. There are wonderful attorneys who practice in more than one area - family, criminal, wills, etc. But make sure they do frequently handle your type of case. The law is complex and wide-ranging, and none of us can claim to be competent in all areas.
4) Go local. Most of us have a geographic area we usually practice in, where we know the judges, the courthouse staff, and other attorneys. While we're licensed to practice statewide, we usually are more familiar with the local practices and rules in the courts we appear in most often. Also, you may end up paying travel costs for an attorney to appear far away from his or her location.
5) Read the fine print. Most attorneys will have you sign a contract to formalize their representation of you. I go over mine with each client, so they understand what they're agreeing to. Don't just sign what's put in front of you without reading and understanding it.
6) Understand the terms "retainer," "fee deposit," and "flat fee:" People talk about "retainers" all the time when hiring family law attorneys, but the use of a true retainer in a divorce case is very rare. A retainer is an amount of money paid to an attorney, usually on a regular basis, to assure that the attorney will be available when the client needs him. It's usually paid whether the attorney does any legal work for the client or not. For that reason, it's common only with large companies and very wealthy individuals.
Most family law attorneys ask for an amount of money up front, as a deposit for future fees and expenses. In Texas, the attorney must put the money you give her in a trust account (the interest on those funds goes to help fund legal services to the poor). As the attorney does work on your case, she tracks her time, and bills you for those hours. She takes payment out of the trust account, and transfers it into another account. She can't touch your money until she's actually done the work. And if she completes her work on your case and there is money left in your trust account, she must refund that money to you.
Some attorneys (understandably) find it simpler to just charge a flat fee for services - $2500 for a divorce, $500 for a name change, etc. That way they don't have to deal with the complications of trust account billing. It's a bit of a gamble on both sides - if your divorce ends up taking a lot of attorney time, you come out ahead; if your matter turns out to be very simple and quick, the attorney comes out ahead
.
7) Don't just go for the "cheapest" lawyer. We all want our attorney to be cost-effective, but cost won't make a difference if the attorney is not effective. A more experienced attorney is going to charge a higher hourly rate, but will likely be more efficient in performing your work.
8) Match the attorney to the job. If you have the simplest divorce in the world, you don't need the best-known, most powerful litigator in the county. On the other hand, if you have extensive assets or complicated issues, you don't want to hire someone who's just out of law school.
And think about the tone you want to set in your divorce - do you want to scorch the earth, or handle things as amicably as possible? Different attorneys have very different styles, and none of us are right for every case. If you want someone to nail your ex to the wall, ask around and find a lawyer with a reputation for being aggressive. If you want to build a good co-parenting relationship with your ex, you probably want to look for someone with more experience in collaborative law, mediation, and other relationship-building techniques.
9) Staff or no staff? In some larger law offices, most of your contact will be with an assistant, and not with the attorney. This is not necessarily a bad thing - it saves you money, since the assistant's hourly rate will be much lower than the attorney's, and most legal assistants are wonderful. A sole practitioner with no staff will likely answer the phone herself, but then again, when she's in court or at a mediation, you won't be able to reach anyone. In this case, it's a matter of preference, both the attorney's and the client's.
10) Ask questions. Here are some to get you started:
-How long have you been practicing law?
-How much do you charge for an initial consultation?
-How much do you usually ask for as a fee deposit?
-What is your hourly rate?
-Do you charge for travel time?
-When I call your office, will I speak to you or a staff member?
-In what county do you usually practice?
-What percentage of your practice is family law?
-How would you describe your style? Aggressive? Cooperative?
-Do most of your cases settle or go to hearing?
-Do you routinely send out formal written discovery in every case?
-What increment of time do you use for billing? Tenths of an hour (6-minute) or quarter-hour (15-minute) increments are common. The smaller the billing increment, the better for you.
Good luck to you in your search for counsel!
Recommended Reading on Divorce
I have always been an avid reader, and when life throws a new experience my way, I try to read what I can on it. These books all helped me through my own divorce eleven years ago. I would encourage you to pick them up, no matter what stage of the process you are in. As Constance Ahrons says, "It's never too late to have a good divorce."
1. The Good Divorce, by Constance Ahrons. In this 1995 work, Ahrons lays out a startling premise - that it is possible to have a "good" divorce. I know the idea shocked me when I first saw the title, but I grabbed onto it as a lifeline of hope. Was it possible for me to end my marriage and not ruin my life, or permanently damage my children? Here's a quote from her first chapter:
"The good divorce is not an oxymoron. A good divorce is one in which both the adults and children emerge at least as emotionally well as they were before the divorce. Because we have been so inundated with negative stories, divorce immediately carries with it a negative association. Even though we have difficulty conjuring up positive images of divorce, the reality is that most people feel their lives improved after their divorces."
I meet many people who say, "Oh, it's too late for that. my spouse is crazy." And then they tell me their divorce tale of woe. But I'm here to tell you that it can get better. The most important message I took away from this book was that, even if your divorce was 20 years ago, your family will benefit now from you improving your relationship with your ex-spouse. I kept that goal in mind, and by the time our youngest was in kindergarten, three years after our much-less-than-perfect divorce was final, her teacher commented, "I wish my ex and I could get along as well as you two." I almost fell out of my chair, but when I recovered from the shock, I realized she was right. We had finally achieved the good divorce.
2. Mom's House, Dad's House: Making Two Homes for Your Child, by Isolina Ricci. Originally published in 1980 (and revised in 1997), this book was groundbreaking in rejecting traditional ideas of custody and visitation. Children don't have to live with one parent or the other; they can live with both parents, in two separate households. Thirty-plus years later, and I still find parents, judges and attorneys who haven't embraced this idea. But do a little research on the effect of divorce on children, and you'll find a consensus that what harms children is not the divorce itself, it's other factors, including conflict between parents, and the loss of contact with the "non-custodial" parent. Read this book; follow the suggestions in this book, and you'll be doing as much as you can for your children.
3. Getting Divorced Without Ruining Your Life: A Reasoned, Practical Guide to the Legal, Emotional and Financial Ins and Outs of Negotiating a Divorce Settlement, by Sam Margulies. If you have made the painful decision to divorce, this book helps you do it in the "best" way possible. It is my opinion that litigation is a poor solution litigation is to family problems. Margulies, an attorney and mediator, makes the very valid point that the legal process is liable to lead you to take actions that are contrary to your long-term interests: an effective parenting plan, the maximum financial benefit, and emotional health and well-being. Legal battles drive you apart, escalate conflict, and cost a lot of money. He suggests mediation as an alternative, and provides a blueprint for the process.
One caveat: some of the information in this edition is slightly out of date, since it is from 1992. Also, if you are in a community property state (such as Texas), much of the advice on dividing up the marital estate is going to be inapplicable.
4. Joint Custody With a Jerk: Raising a Child with an Uncooperative Ex, A hands-on, practical guide to coping with custody issues that arise with an uncooperative ex-spouse, by Julie A. Ross and Judy Corcoran. I love this book because the title is so great. Everyone thinks their ex-spouse is a jerk, so it draws them in. However, the contents are much more balanced than the title. The point of the book is, you can't do anything about his or her jerk-like behavior. You can only change your own responses to it. I will never forget the first time I used a technique from this book with my ex. I was driving my car in rush hour traffic, and he was pestering me for an answer on something. I said, "If you need an answer right now, the answer is no. If you give me some time to consider it, that answer may change." Worked like magic. Now, I no longer think my ex is a jerk - I think he, like all of us going through a divorce, was acting out of fear. But learning to look at my own behavior really helped our relationship, and this book helped me start to do that.
5. The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids - Without Going to Court, by Stuart G. Webb and Ronald D. Ousky. This was the first book on Collaborative Divorce in the U.S., and it's one I routinely give out to clients. The authors are based in Minnesota, so some of the points on property division and child custody won't be the same as in Texas. But the basic outline of the Collaborative model is here, and it's a great place for divorcing couples to start. I firmly believe that the traditional, litigated divorce process makes most divorces worse, not better, and that a collaborative divorce can set the foundation for a healthy, financially stable post-divorce life.
These books encapsulate my whole ethos of divorce: that it's possible to have a good divorce; that children are better off with regular, healthy contact with both parents; that it's possible to work cooperatively to reach a divorce settlement that doesn't ruin your life; that you can parent effectively even when other parent is trying not to; and that the collaborative model is the best, safest way to reach a healthy end point of the process.
