Texas law does not recognize any type of status like a legal separation. Spouses may separated and live apart, but unless a divorce is obtained, the parties will remain married.
Parties often ask about legal separation because they are desirous of some court intervention short of a divorce. Parties may agree to separate, but not agree about primary custody, use of the marital home, or some other visitation or property related matter. In such situations, the Texas courts will not become involved with the parties' marital issues unless one of the parties files a petition for divorce, inviting the state of Texas to become involved.
Texas law provides for a sixty (60) day cooling-off period in the majority of divorce cases. The only exceptions to this waiting period have been carved out by the legislature for matters involving situations involving family-violence. The waiting period begins at the time a petition for divorce is filed. The waiting period doesn't mean that anything must happen at the sixty (60) day mark, but only that at least sixty (60) days must elapse before a divorce order can be signed by the Court.
An agreed divorce is a case where the parties not only are interested in resolving their case by agreement, but they actually have the details of their case defined, and are in agreement. If the parties are not in agreement on "anything", that decision will have to be put before a District Court Judge. Of course, there are opportunities as the case develops for the parties to narrow the scope of their differences, and possibly reach an agreement. But until every detail of a case is agreed, the matter is not agreed - in other words - it is contested.
If you think you have a very simple, agreed divorce matter, and you want to handle the case yourself, | click here | to go to our firms Uncontested & Agreed Divorce Plan page.
The cost of divorce can range from about $1,200.00 for the least expensive matters, to tens of thousands of dollars, for a hotly contested custody and property case. For agreed matters, our office will usually charge a flat fee. We can change a flat fee because if the parties are cooperating, we can calculate the work needed to complete the matter. For contested cases, or cases where it's not possible to accurately estimate the cost of resolution, we require a retainer to start the case. We will bill against this retainer as we prosecute your case. As the retainer is exhausted, you will be asked to replenish the account. The amount of the retainer will depend on our office's initial evaluation of your case. Our retainer is from $2,500.00.
If you think you have a very simple, agreed divorce matter, and you want to handle the case yourself | click here | to go to our firms Uncontested & Agreed Do it yourself Attorney assisted Divorce Plan.
Texas law presumes that any interest acquired during a marriage is community property. Separate property is property that was either brought into the marriage (owned prior to marriage), or a gift to one of the spouses. This same presumption applies to debt accumulated during a marriage. Of course, a premarital agreement can change this presumption. Also the courts have the authority to divide assets and debts in a "just and equitable" manner, and aren't required to make a 50/50 split.
Spouses with separate property should be careful to ensure they understand the rules required to avoid accidentally comingling their separate property with community property. The advice of a competent attorney is invaluable here, and can really save your assets.
Contested custody cases are so well known, that they almost define the classification of divorce law. Property cases can be hotly contested, but I'm not aware of any area in law where parties will fight and litigate like they will when they are fighting and litigating over custody issues. The simple answer to how custody will be determined is that the Trier of fact, either judge, or jury, will make decision based on the "best interest of the child". What exactly is in the "best interest of the child" is a much more difficult question.
It shouldn't be difficult to understand why custody cases require competent and diligent counsel. A lawyer must know the facts of your case cold, and must be able to adroitly handle this information to arrive at a strategy appropriate for not only your case in chief, but for examining and cross examining each witness