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Hiring the Right Texas Family Lawyer

If you are seeking a divorce, gain custody of your children, draft a prenuptial agreement or are just looking for legal advice about your situation, we recommend that you speak with a lawyer. An experienced family attorney can help you understand the important legal concepts and ramifications surrounding your issue, and give you advice about a recommended course of action. The process of finding and working with the right lawyer can sometimes seem to be uncertain, but a short meeting with an attorney can often set your mind at ease and guide you towards a positive resolution.

Before you begin, there are some key issues you may want to consider as you start your search for an attorney. First, it is to your benefit to contact an attorney as soon as possible after your legal issue arises. If you wait to contact attorney, you could miss important deadlines that can affect your case or proceedings. Next, understand why you want to meet with a lawyer. Layout out the goals you hope to accomplish with them and understand the different billing methods that attorneys use. And finally, it is important to establish an open line of communication with your attorney as go through your legal process so that you are aware of unforeseen issues or complexities that may arise.

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Information About Family Law in Texas

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When reaching adulthood or having children, establishing a common law marriage or dissolving a formal marriage, it is important to be aware that your legal status may change, along with your legal rights and responsibilities. In the state of Texas, family law is governed by the Texas Family Code, which is made up of 5 Titles, containing statutes on topics including (but not limited to) marriage, divorce and legal separation, division of property, child custody, spousal and child support, and adoption.

Marriage

In the state of Texas, there are two types of legally recognized marriage. “Informal Marriages”, also known as common law marriages, involve people living together and subsequently agreeing to be married. Informal marriages are just as enforceable as are formal marriages should the parties choose to get divorced. The only requirements are that:

  • The parties agree to be married; After the agreement they live together in this state as husband and wife; and
  • They represent to others that they were married.

“Formal Marriages”, which involve church weddings or weddings before a Judge or Justice of the Peace, require a marriage license. The registration of marriages is a local and state function. In order to establish a marriage in Texas, the following requirements must be met:

  • The parties involved are of opposite genders. Only marriage between a man and a woman is valid or recognized.
  • The parties are not related to each other by blood or adoption.
  • Neither party is married to someone else.
  • Both partners are at least 18 years of ageand capable of consenting to the marriage. If one or both applicants are age fourteen to eighteen, they must show proof of parental consent.
  • Neither party is presently delinquent in the payment of court-ordered child support.
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In Texas, a marriage license is valid for 30 days so you'll want to take care of this at your local County Clerk's office within a month of your wedding day.In order to obtain a marriage license in Texas, the following list of requirements must be each person applying for a license must:

  • Identification: A valid picture ID that includes date of birth, issuance and expiration date is required for both parties. Some counties also require state certified birth certificates.
  • Age: 18 years and older. Minors (age 16-17) may apply for a marriage license with parental and court consent. Minors cannot enter into an informal marriage.
  • Residency: California residency and U.S. citizenship are not requirements
  • Previous Marriages: You must provide any copies of divorce decrees to the clerk at the time of application. At least 30 days must have passed from the issuance date of the decree.
  • Waiting Period: Yes - 72 hours. It can be waived for active duty military personnel.
  • Fees: Varies by county, between $30 and $40. Effective September 2008, the license fee will be waived if the couple takes an 8-hour premarital preparation course that covers important marital skills and issues such as conflict management and communication.
  • Blood Test: Not required.
  • License Validity: 30 days from the date of issuance.
  • Proxy Marriages: Yes. In Texas, any adult person can apply on behalf of an applicant who is unable to appear personally before the county clerk. An affidavit of absence form must be provided. If you are incarcerated and are unable to be present for your wedding ceremony, you can also request a Prison Proxy form.
  • Copy of Certificate: Verification of Marriage is available at the Texas Department of Health, Bureau of Vital Statistics, but they can only verify that a marriage took place and/or identify the county of occurrence. Certified copies of the Marriage License are only available from the County Clerk's Office in the county in which the marriage occurred. The fee is usually around $9.00.

Divorce

In the state of Texas, a divorce is referred to as a dissolution of marriage. A dissolution of marriage is a court order that legally terminates a valid marriage. The effect of a dissolution of marriage, when it is finalized, is to restore the parties to the state of unmarried persons.

In order to file for a dissolution of marriage, one of the parties to the marriage must be a resident of the state for at least six months and a resident of the county in which the proceeding is filed for at least 90 days.

In Texas, the following are available grounds for divorce:

No Fault. There is no need for proof that either spouse did something wrong in order to dissolve the marriage. The pleading party needs only to claim that there has been an irreparable breakdown of the marriage due to irreconcilable differences or incurable insanity. Irreconcilable differences are those deemed by the court to be sufficient reasons for not continuing the marriage.

Page 3 of 7

Cruelty. If the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

Adultery. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

Felony Conviction. The court may grant a divorce in favor of one spouse if during the marriage the other spouse: (1) has been convicted of a felony; (2) has been imprisoned for at least one year in the State Penitentiary, a Federal Penitentiary, or the penitentiary of another state; and (3) has not been pardoned. The court will not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.

Abandonment. The court may grant a divorce in favor of one spouse if the other spouse: (1) left the complaining spouse with the intention of abandonment; and (2) remained away for at least one year.

Living apart. The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.

Confinement in a mental institution. The court may grant a divorce in favor of one spouse if at the time the suit is filed: (1) The other spouse has been confined in a state mental hospital or private mental hospital in any state for at least three years; and (2) it appears that the hospitalized spouse's mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

*Informal Marriage Important Note - Statute of Limitations: If a lawsuit alleging a common law marriage is not commenced within two years after the parties separated and ceased living together, it is "rebuttably presumed" that they did not agree to be married. Therefore, if you are "common law married" and intend to file for divorce, it is important that you do so within the 2 years following your separation in order to fully protect yourself.

Filing for Divorce

In Texas, the District Courts handle divorce cases. The District Court of Texas has facilities in each county. To begin a proceeding for a dissolution of marriage, one of the spouses must file an “Original Petition for Divorce” with the Family Law District Court in the county in which the other spouse resides.

The other spouse is then served with this paperwork and given time to respond. If the spouses are in agreement about property and debt division, as well as child custody and child support matters (if applicable), the divorce can be finalized without a court trial. If the parties cannot come to an agreement over one or more of these matters, the court will set up a hearing.

After the Petition for Dissolution has been filed, either party may request temporary court assistance for determining temporary custody and child support orders while they are waiting for the permanent decisions to be made.

Page 4 of 7

Dividing the Property

Texas is a “community property” state, which means that all of the property and debts acquired during your marriage will be divided equally when you divorce. However, not all property is considered “community property”. The following are examples of property that is not included in “community property:

  • Any assets or debts you had prior to your marriage will be considered separate property if you kept that property separated from property acquired during the marriage
  • The income produced by a separate property investment, as long as it hasn't been mixed together with community money
  • Property inherited from family during your marriage if it was willed exclusively to you and you did not mix it together with community assets during the marriage.

It's important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth, as this will save you valuable time and money during the court procedures.

Alimony

Alimony, called spousal support in Texas, refers to payments from one spouse to the other spouse, for the benefit of the spouse who is receiving payment. The purpose of alimony is to limit any unfair economic effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse. A court can order alimony in any case, and will generally consider the following factors:

  • The financial resources of each party
  • The needs of each party
  • The age and health of the parties
  • The standard of living established during the marriage
  • The impact on the children (if applicable) of having the care-giving spouse working
  • Any tax consequences
  • All sources of income available to either party

Most spousal support is ordered for a specified amount of time. Usually, the duration of spousal support is closely linked to the length of the marriage. Frequently, practitioners speak of the 'rule of thumb' that spousal support will last for one-half the length of the marriage if the length of the marriage is less than 10 years. Once ordered, it can be modified if one party proves a “change in circumstances”.

Page 5 of 7

Child Support

Child support refers to the amount of money that the court orders one party to pay the other party every month for the support of the child or children adopted or born during the duration of the marriage.

In Texas, child support is based on the paying parent's net earnings, which include income less taxes and social security. The paying parent will usually be ordered to pay based on the number of children that he/she has with the receiving parent, a percentage of the 1st $6000 net earnings as follows:

• 20% of net resources for one child

• 25% of net resources for two children

• 30% of net resources for three children

• 35% of net resources for four children

• 40% of net resources for five children

In Texas, child support payments are usually made until children turn 18, or 19 if they are still in high school full time, living at home, and can't support themselves. However, if both parents agree, child support may continue on for as long as the parents desire. As with spousal support, a Texas child support order can be modified if there has been a “change in circumstances”.

Child Custody and Visitation

In Texas, the court will make child custody decisions based on what is in the best interest of the child when the parents cannot come to an agreement. Courts will presume that joint legal custody- called "conservatorship" is best, unless you can prove otherwise. There are different types of conservatorship in Texas that can be awarded to one or both parents in a divorce or separation case:

-Sole Managing Conservatorship means the parent has the right to primary possession of the child, the right to receive child support and the right to make decisions on behalf of the child.

-Possessory Conservator means the parent has the right to visitation and the duty to pay child support.

-Joint Managing Conservatorship WithPrimary Possession means the the parent awarded this has the right to primary possession and to receive child support and shares right to make decisions on behalf of the child with the other parent.

-In contrast, the parent awarded Joint Managing Conservatorship Without Primary Possession is the one with the duty to pay child support and the right to visitation and joint right to make decisions.

Visitation isa privilege granted to the parent who does not have physical custody of the child for the majority of the time to spend a certain amount of time each day, week, or month with the child. Generally, the court will aid in creating a detailed visitation plan to prevent conflicts and or confusion.

Supervised Visitation is granted to a parent when the child's safety and well-being require that the visits be supervised by a third party. This third party can be the other parent, another adult, or a professional agency. Supervised visitation is generally used in cases where the child and parent need to get to know one another better, for example, when the parent has been out of the child's life for a long time due to jail time or career circumstances.

Page 6 of 7

In deciding which parent should have primary conservatorship, the court will consider:\

• The history of contact between the parents and the child

• The health, safety and welfare of the child

• The mental and physical health of the parents, and how close they live to each other

• The preference of a child age 12 or older

• Evidence of child abuse

Texas laws encourage the parents to work out custody arrangements themselves instead of bringing the matter to court. Once the judge makes a custody and/or visitation order and files it with the county clerk, both parents are legally bound to it. If one or both parents want to change the order, the judge will usually approve a new custody or visitation order that both parents agree on. If the parents do not agree on the change, the parent wishing to modify the order must show that there has been a “change in circumstances” affecting the welfare of the child since the last order. Such changes in circumstances include (but are not limited to):

• change in residence of one of the parents

• desire of an older sibling to increase or decrease visitation

• evidence of child abuse

• alteration of the child's school schedule

Contesting or modifying a custody and or visitation order can be a very complicated procedure. It is smart to talk to a family law lawyer about how the law affects you and your rights as a parent.

Adoption

Adoption refers to the process of establishing a legal relationship between a parent and child who are not each other’s biological parent or child. Adoption laws are mainly a product of individual state law, but the different types and methods in which to facilitate an adoption are generally the same nationwide. Please click here for an overview of adoption law and a basic step-by-step guide to adoption.

In Texas, prospective adoptive parent(s) must:

  • be at least 21 years of age.However, if the court finds that it is in the best interest of the child's, it may approve the adoption of a child by a stepparent, sibling, aunt, uncle, or first cousin regardless of the ages of the parties involved.
  • complete an adoption application

share information regarding their background and lifestyle,

provide relative and non-relative references,

show proof of marriage and/or divorce (if applicable),

agree to a home study which includes visits with all household members,

allow staff to complete a criminal history background check and an abuse/neglect check on all adults in the household.

Page 7 of 7

The following requirements must also be met:

The child's consent is required if he or she is over the age 12.

The child must be at least 2 years old.

If the prospective parent is a married person, and not legally separated, the spouse's consent is also required.

  • Consent of the birth parents. This may not be needed if the Court finds that the legal rights of the birth parent(s) have been terminated, if the birth parent(s) have serious mental illness, or other similar stipulations.

More specific and detailed information can be found at the Texas Adoption Resource Exchange website.

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