Divorce is not an unfortunate event, the tragedy is staying in a broken marriage. If you are thinking of getting divorced, wanting to file a modification, or a suit affecting the parent-child relationship, here is a brief overview of how the process would work. If it is not an agreed matter, it would be classified as a contested matter. Whether the case is contested or not determines how long the case will take from start to finish. For example, in an uncontested divorce, the case can be started and completed within 61 days. Generally speaking, a case that is contested will last about a year.
If you are afraid to file for divorce because your spouse or spouse’s family has threatened to take your child/children out of the county and not return, that information would be relayed to the Court to prevent this. If this is the case, when the initial petition for divorce is filed, a temporary restraining order can also be filed asking for temporary custody and for the child/children not to be removed from your care. You will need to attach a notarized statement detailing all of the issues and the fear you have. After the process has begun, the parties will likely attend mediation, and if no agreement can be made, then the Court will decide what to do. When it comes to the child/children, one big fact the Court will look at is who is the primary person that has cared for the child/children.
Domestic Violence is not an excuse to stop you from getting a divorce.
If you are in a situation where there is domestic violence, there are places in Houston and surrounding areas that can help you such as the Houston Area Women’s Center. Places such as this can help with more than just a place to stay; most can assist with finding a job or getting back in school depending on what you want to do. In cases of domestic violence, whether it is by a spouse or an intimate partner, the Court takes that into consideration when it comes to determining conservatorship of the child/ren, visitation, and property division. There is a common misconception when it comes to domestic violence. People often believe, and are told by non-attorneys, that if there is any kind of domestic violence between the parties, that automatically means that the person that committed the domestic violence will be excluded from the child’s life or visitation will be supervised. This is a misconception because domestic violence is not the only determining factor in visitation. If the children were not present when the domestic violence occurred, there is a high burden that has to be met in order for the party to be put on supervised visits or have no access to the children.
What is Mediation?
Mediation is used to see if the two parties can come to an agreement on their own rather than having a Judge decide what should happen. There is a neutral third- party present to help facilitate this process. The best thing about mediation is that the two parties can come up with custom agreements that fit their lives instead of the standard that would get applied by the Court. Most counties in the surrounding areas are requiring mediation before a final trial. In Harris county, almost all of the Family Courts are requiring mediation before a temporary order hearing and before a final trial. In certain cases, a party can request that the mediation requirement be waived; however, this is only a request and the Court can still make the parties attempt mediation. If the parties can come to an agreement outside of mediation, the Court will generally accept that without making the parties attend mediation.
If you have been married for at least ten years, you may be eligible for spousal maintenance (commonly known as alimony). Spousal maintenance is not automatic. There are many other factors that are considered when the Court is deciding whether to authorize spousal maintenance as well such as the disparity in earning capacity and if you are the spouse that stayed home and took care of the children. The Court will also look to the division of property to determine if spousal maintenance is warranted. If the Court grants the request for spousal maintenance, there will be a time frame put on it; it will not last forever. Often times, if it is granted, it will be for about six months or less.
The key thing to remember in a case that has to do with children is that the Court is going to look at what is in the best interest of the child. Court would rather have parties work things out, either with each other directly or using attorney’s, but understand that is not always possible. The Courts are there as the trier of fact when party’s need them.
If you have any specific questions or would like to schedule a consultation, you can give our office a call and we would be happy to help you.
