Frequently Asked Questions in San Antonio, Texas

We understand that when you are dealing with a legal issue, you will have many as many questions for us as we have for you. Family disputes are very stressful and often lead to questions that you wish you could avoid. Let Bineham & Gillen, PLLC, introduce you to some answers here before you call to see us for your free consultation. We welcome you to request a free consultation for specific answers to questions about your case.


Property Division:

Child Custody


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Divorce Attorney And Family Law Attorney

Can I get a legal separation in Texas?

No; in Texas there is no legal separation. If you need to protect your interest regarding your property or your children while you are separated from your spouse, then you will need to file for divorce and obtain temporary orders.

I want a divorce, but my spouse does not want a divorce. Can I get a divorce?

Texas is a no fault divorce state, which means that fault does not need to be proven to obtain a divorce. Therefore, if one spouse wants the divorce then the divorce will be granted.

What is a common law marriage?

This is when the law considers the parties to be married, even though a marriage license has never been issued.The court will find you common law married if you live together, had a proven intent to be married and held yourselves out to others as husband and wife. There is no minimum time to live together. Some of the ways couples hold themselves out to others is by introducing themselves as husband and wife (wife using husband’s last name), filing taxes together as husband and wife, and/or including the other person as a dependent on health insurance as a spouse. In any case, to show common law marriage requires looking at each set of facts and circumstances on a case-by-case basis; for instance, living together and having children together does not automatically mean you are common law married.

If I am common law married, do I need to get a divorce?

Yes; unless you have been separated for over two years then you will not need to file for a divorce because the law presumes that you were not common law married.

How long does it take to get divorced?

Texas has a minimum 60-day waiting period before a divorce can be finalized.The 60 days starts running at the time the divorce is filed. However, most divorces take much longer to resolve; on average it takes between six to 12 months if it is contested. The more agreements that can be reached between the parties the faster the divorce can proceed to conclusion.

What is community property?

Texas is a community property state. It is presumed that all property owned by married persons on the dissolution of the marriage, whether by death or divorce, is the property of both the husband and the wife. Likewise, any debts incurred during the marriage are presumed to be incurred by both the husband and the wife. Like community property, community debt must be divided during a divorce.

How is property divided in a divorce case?

Texas is a community property state which in theory means that each party is entitled to 50 percent of the property obtained during the marriage as well as responsible for 50 percent of the debt incurred during the marriage. However, a party is entitled to retain his or her “separate property,” meaning property they brought into the marriage, property they inherited, or property given to that spouse as a gift from a third party. While Texas is a community property state, the community property and debt can be divided in a manner that the court deems just and right with respect to the rights of each party and the children of the marriage. This essentially means that the property and debt does not have to be divided equally between the parties.The court will consider many factors including the size of either spouses separate estate and any fault in causing the divorce.

We own one house and the mortgage is in both our names. How can the party NOT receiving the home have his or her named removed from the mortgage in a divorce case?

When married couples purchase a home in Texas, the property is put in both names irrespective if the mortgage is only in one party’s name. In most cases, the mortgage is in both of the party’s names, too. Since the lender of the mortgage is not a party to divorce action, the lender may still pursue either spouse for collection of the mortgage. Therefore, a divorce decree cannot remove the liability owed on the property by either party, even if the decree explicitly states that one party is being awarded the property over the other party. If the parties purchased the home together and the party receiving the property cannot refinance the home in his or her name, the parties will execute a special warranty deed and a deed of trust to secure assumption. A deed of trust to secure assumption provides the party not receiving the property a mechanism to regain control over the property should the other party default on it in the future.

Do the courts still award alimony? How is alimony determined?

In Texas alimony is often referred to as spousal maintenance and/or spousal support. Furthermore, if a party qualifies and the court awards spousal alimony it is often limited to a specific number of years in an effort to provide some limited support during the period of uncertainty following a divorce. The main purpose for alimony in Texas is to help protect the long-term homemaker, disabled spouses, spouses who care for disabled children and spouses who are victims of family violence. To be awarded spousal maintenance the party must show that he or she is a spouse, that he or she lacks sufficient property to provide for his or her minimum reasonable needs and that he or she has met one of the four statutory bases for spousal maintenance, such as: 1. married for 10 years; 2. victim of family violence; 3. disabled; or 4. primary caretaker of a disabled child.

Are there jury trials in divorce cases for property issues?

A jury can be requested by either party at any time during the divorce with few exceptions. With respect to a divorce a jury can give a binding verdict on some issues but only an advisory opinion on other issues. For example, a jury can give a binding verdict on the (1) grounds for divorce; (2) character of property; (3) value of property.

Who watches out for the children in contested custody cases?

In a contested divorce or child custody case, parents cannot always see the stress that is thrust upon the children. To help the children cope with this stressful time counseling is often recommended.The parties can agree on counseling or the court can order counseling while the case is pending and after the case is resolved. Sometimes counseling is not enough and an attorney ad litem, amicus attorney, or guardian ad litem will be appointed by the courts. These appointments are usually an attorney who represents the interest of the children and usually makes a recommendation to the court. Of course, this becomes an additional expense to the parties. In some cases a court may order a social study to be performed by a qualified mental health professional. An evaluator must follow strict guidelines when completing a comprehensive social study in Bexar County.

What is a social study?

When a court orders that a social study be conducted, it will appoint an evaluator to conduct the study. In general, it is a series of interviews and observations that will result in a document which provides information about a family to assist the court in reaching a decision that is in the best interest of the children. In San Antonio the Bexar County District Juvenile Probation Department Domestic Relations Office maintains a list of mental health professionals who are qualified to provide social studies to the Bexar County District Courts. An evaluator must follow strict guidelines when completing a comprehensive social study in Bexar County.

When would a court appoint a parent coordinator or parent facilitator?

A court will appoint a parent coordinator or parent facilitator when the court determines that the case is a high-conflict case or there is good cause and it is in the best interest of the child. Generally, a parent coordinator or a parent facilitator is an impartial individual who is under the Texas Family Code and can perform a series of duties in an effort to resolve parenting issues. The primary difference between a parent coordinator and a parent facilitator is that a parent coordinator must use confidential procedures that are not subject to disclosure to the court.

Can a non-parent or grandparent ask for conservatorship?

Only in limited circumstances can a person other than a parent be granted conservatorship for a child.

Non-parent: First, the non-parent must show that he or she can ask the court for conservatorship; this is referred to as ” standing.” One way a non-parent can demonstrate standing is by showing that he or she has had “actual care, control and possession of the child for at least six months” and this six-month time period has not ended more than 90 days prior to filing the suit. Second, the non-parent must overcome (or rebut) the ” parental presumption” that the parent should be appointed the sole managing conservator or the parents shall be appointed the joint managing conservators.

Grandparent: A grandparent must also demonstrate standing prior to filing an original suit or intervention suit for conservatorship. Grandparents can utilize all the mechanisms available to non-parents as well as some other provisions in the Texas Family Code which grant grandparents possession and access under certain circumstances.

Can the child be restricted to a specific geographic area?

Yes, the court can restrict the child’s primary residence to a specific geographic area. Usually the court will order the child to maintain primary residence within that county and its surrounding counties for as long as the non-custodial parent resides in that county or contiguous counties. The courts favor this type of domicile restriction because it is normally in the child’s best interest to live close to both parents.

Can the child tell the court which parent he or she wants to live with?

Yes; if a child is 12 years or older the court shall interview the child in chambers, or if the child is under 12 years of age, the court may interview the child in chambers to determine the child’s wishes as to conservatorship or as to the person who shall have the primary right to determine the child’s residence.The application to have the child interviewed can be brought by a party, amicus attorney or an attorney ad litem in a non-jury trial or hearing.

What must take place for an adoption to be final?

To finalize an adoption the court must terminate the birth parent’s rights to the child, and approve the adoption by signing an order granting the adoption.

What does it mean when a parent’s rights have been terminated?

When a parent’s rights have been terminated, it generally means that the parent is no longer considered a legal parent to the child. The parent who has been terminated of his or her parental rights will no longer have any legal rights, duties, or responsibilities to the child.

How are a parents rights terminated?

The parent may agree to having his or her rights terminated by signing a voluntary relinquishment of parental rights. In every other case, the court would need to find that it is in the child’s best interest to terminate one or both parents’ rights to the child.

What if the birth father cannot be located?

If the location or identity of the birth father is unknown, he is nevertheless entitled to notice of the proceedings, and you must show the court that you have diligently tried to find him. This may require giving notice by publication in a newspaper where the child was born and where the father was last known to live. In some cases, the birth mother may suspect more than one person may be the biological father which requires diligently trying to notice any suspected fathers. The rules for providing notice are complex and must be adhered to strictly; obtaining an experienced attorney is necessary to ensure that the proper procedures are followed.

Can the child’s name be changed at the time of the adoption?

Yes; the name of the child can be changed, but must be specifically stated in the order granting the adoption. Once the order is signed by the court, you will need to specifically request the child’s name to be changed, which requires additional paperwork to be processed through the court’s clerk and the Bureau of Vital Statistics in Austin, Texas.