Wendy L. Prater
Attorney At Law

Family Law

How is the divorce proceeding started?

A divorce is a lawsuit, so you must file a petition in the district clerk's office and pay the required filing fee.

How is my spouse notified that I have filed for divorce?

Your spouse may either be served with process by a sheriff, constable or private process server; or your spouse may sign a Waiver of Service of Citation. This document is signed in front of a Notary Public after the divorce petition is filed and verifies that your spouse knows a divorce is pending, has received a copy of the petition, and waives the opportunity to be served.

What is an uncontested divorce?

An uncontested divorce occurs when the married couple can agree on every aspect of the divorce, including who gets what items of property and debt, and what the possession (visitation) schedule for the children will be. This may occur whether or not each party obtains an attorney.

How long does it take to get divorced?

There is a minimum sixty-day waiting period from the date the divorce suit is filed with the county clerk until a court can grant the divorce. Of course, if the parties are not in agreement on the terms of the divorce, it likely will take longer to get the divorce accomplished.

Does Texas have a legal separation?

No. You can't file for a separation, only for a divorce.

What are temporary orders?

Soon after filing for divorce, you may be able to obtain temporary orders from the court to cover interim issues like who gets to live in the house, what the visitation schedule with the children will be, and how much temporary child support and/or spousal support will be paid. This occurs at a scheduled Court hearing. The temporary order remains in effect until changed by additional court orders or superseded by the final divorce decree.

What is the difference between a temporary restraining order and temporary orders?

A temporary restraining order, or TRO, is an order signed by the Court without notice to your spouse. It usually addresses rules about property issues, like spending money, and personal issues, like "being nice" to the other party. It is only effective for a limited period of time, until the Court holds a temporary order hearing. It is served upon your spouse, along with the date to appear at the temporary order hearing. The Court will then decide whether or not the temporary restraining order will become a temporary injunction and order temporary orders.

I want my spouse out of the house. What do I do?

The one action that cannot be taken by a temporary restraining order is to "kick someone out of the house". The issue of who should remain in the home can be addressed at the temporary order hearing.

Is it okay to establish a relationship during the time between filing for divorce and the divorce becoming final?

No. This is not recommended, even if your spouse is dating. It could complicate the divorce. Your spouse may assert that you are committing adultery, and it could affect the property division of the divorce.

Can I get the court to require my spouse to pay my legal fees?

The divorce petition usually requests that your spouse pay your attorneys' fees, it just does not usually happen. In uncontested divorce situations, most couples agree that each will pay their own attorney's fees. The courts also seem prone to require the parties to pay their own attorneys' fees.

How much child support will be ordered?

Except for special circumstances, child support is determined by a formula contained in the Texas Family Code. Generally, child support is calculated by applying a percentage to the net resources based upon how many children are being supported. Net income is determined by using an average gross monthly income and applying the guidelines of the Texas Family Code.

What is a wage withholding order?

A wage withholding order is an order of the Court directing an employer to withhold child support payments from the employee's income.

What will the visitation schedule be like?

The Texas Family Code contains what is referred to as the "Standard Possession Order." Generally, it provides possession by the parent that the children do not primarily live on the 1st, 3rd and 5th weekends of each month, Thursday evenings during the school year, alternating holidays, and an extended time during the summer. There are additional options for extended possession, like picking up the child at school when school dismisses before the weekend, and overnight on Sunday and Thursday night. Parents may also agree to a different schedule, such as every other weekend, as long as it is enforceable and is approved by the Court.

What is a modification?

Child support, provisions for custody (conservatorship) and visitation may be changed, or modified. This process is begun by filing a motion with the Court which entered the last order.

My ex-spouse is not obeying an order of the Court. What do I do?

You may file a motion for enforcement complaining to the Court which provisions of its Order have been violated. This motion is served upon your ex-spouse, along with a date to appear at Court. Depending on the type of violation, punishment could be a fine, jail time, and/or payment of your attorneys' fees.

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Wendy L. Prater
Attorney at Law

1919 North Loop West, Suite 490
Houston, Texas 77008
Phone: (713) 802-9171
Fax: (713) 802-9173
E-mail