Does it matter who files for divorce first in Texas?

As a San Antonio divorce attorney, I am asked the question “does it matter who files first” very often.  The answer is that it, in most cases, it probably doesn’t matter that much but at other times it can be important.  This question should be answered on a case by case basis.  However, for the purposes of this blog, I will share some general perspectives on filing first for divorce in Texas.

One advantage to filing first is that you get to talk first in court.  That can be an advantage at times, but other times it is advantageous to talk second and get the last word in.  Another advantage is that if you file first, you can set the initial tone and the speed of the case. For example, if you file first, you have the option of being the first to decide if you need a temporary orders hearing. A temporary orders hearing is a hearing where the judge will decide issues such as custody, child support, living arrangements, and paying the bills. If your spouse files first, that doesn’t mean you can’t set it for a hearing.  Whether you file first or second, you can set it for a temporary hearing.

Another advantage of filing first is being able to obtain immediate help and relief from the court if you need it. In most Texas counties, as soon as you file for divorce a standard order comes into place regarding assets and children. These orders can be powerful and help prevent future problems. It may important for you to get those orders in place right away.  Also, if you need a protective order or need to prevent your spouse from moving away with your children, you will need to file first so that the judge can enter some immediate orders regarding those issues.

One disadvantage to filing first in most Texas counties is that the typically the filing fee for the person who files first is more expensive. For example, in Bexar County, the filing fee for the person who files first in a divorce that involves children is $304.00.  The fee for their spouse to file a counter-petition is just $40.00.

Bottom line- You technically do not get a legal advantage to filing first. However, filing first does let you control some aspects of the case at the beginning that you would otherwise not be able to control. If you are considering divorce or you think your spouse might be thinking of filing for divorce, call me at 210-202-2323. As a San Antonio divorce attorney, I can help weigh the pros and cons of filing first with you and help you make that decision.

 

Who gets the pets in the divorce?

San Antonio Divorce Lawyer discussing who gets the pets in divorce?

San Antonio Divorce Lawyer-Who gets the pets in divorce?

 As a San Antonio Divorce Lawyer, I am aware that divorce can cause disruption in all aspects of your life, including the life of your family pet. Texas views your pet as property that is subject to division in the divorce.  This probably seems like a crazy idea to pet lovers throughout Texas see their pet as a family member and not as a piece of property (like a lamp or t.v. set).  If you are going through a divorce, a San Antonio divorce lawyer will tell you that deciding who your pet will live with can be a major decision.  It is typically best to try to reach an agreement about your pet with your spouse.  If you end up in court, the judge’s only option will be to award the pet to one spouse or the other. The judge will not be able to set up a visitation plan because the pet is only “property” according to Texas law.  You could reach an agreement with your spouse for visitation with your pet, however, it may be hard to enforce this agreement down the line if your ex doesn’t follow the visitation agreement.  Some celebrity couples have done just that. In a Huff Post article,  it is revealed that several celebrity couples have struggled with dividing pets in divorce and some have even shared custody of their pets.   Read More

Remarrying After Divorce: 30 day waiting period

The State of Texas requires that a person wait 30 days from the date of their divorce to be married again.  The reason for this is that 30 days after your divorce, either party can file for an appeal or a new trial and the case could be “reopened”.

If you decide to remarry before 30 days has passed since your divorce, your new marriage is voidable. That means that it could be set aside by a court.  If you want to get married before the 30 days are up, you can ask the judge to waive the waiting period. As a San Antonio divorce attorney, I can help you with that.

San Antonio Divorce Lawyer Speaking About Courtroom Behavior

As a San Antonio divorce lawyer, I am in the courtroom on a regular basis. Some weeks, like next week, I will be in court every day of the week.  That being said, I frequently am able to observe how people act in the courtroom.  Sometimes, it is not that great and we could all learn a lesson.  Recently, a Michigan judge held himself in contempt for his own phone ringing during a trial.  This is a great reminder that everyone, no matter who, needs to obey the court’s rules.

As a divorce lawyer in San Antonio, I am familiar with our court’s rules here in Bexar County.  Like Michigan, you are not allowed to have your phone make noise during a court hearing or while you are in the presiding court. If it does ring, you could be fined or have your phone confiscated for the day.

My advice to anyone going to court is to act professionally! Most San Antonio divorce lawyers will tell you to turn your phone off! I also ask my clients to dress professionally and to be polite at all times to the court staff and judges. Court is not a time to get in a fight with your ex or talk trash to your ex’s family members.  If your ex is bothering you or harassing you while you are in court, go to a bailiff and ask them for help.

Powerball Winner Owes $29k in Child Support

I read an article today at the Washington Post which reported on how the recent powerball winner owes $29k in child support. As a Texas attorney, I cannot speak to his case which is in New Jersey. But, it made me think about what would happen in Texas. In Texas, the Attorney General would have the ability to attach to the lottery winnings and have it paid out before the winner would receive the money. So, if he were in Texas, the money would be paid to  his kids first before he received it.  The Texas Attorney General can attach to nonexempt property for child support arrears. If you are in the position that you owe money for child support, you need to obtain counsel because there are serious consequences to owing money for child support. You can go to jail, lose your license, have to pay court costs or attorneys fees, and more.  If someone owes you child support, it is a good idea to get an attorney to represent you so that you can go to court to get that money paid back to you. As a San Antonio child support attorney, I deal with child support cases for people on both ends. Please contact my firm for a free initial consult.

Texas Standard Possession Order

The Texas Standard Possession Order (SPO) is a default visitation schedule that was created by the Texas legislature and is defined in the Texas Family Code.  It is used in the  majority of Texas divorce cases involving kids. Reading the actual language of the Standard Possession Order (SPO) can be difficult because it is very lengthy. The Standard Possession Order statute is found in the Texas Family Code Section 153.3101 through 153.317.

When you are going through your divorce, you do not have to agree to the Standard Possession Order (SPO). You can enter into any agreement with your spouse that you believe is best for your children.  If you cannot reach an agreement with your spouse, you can ask the judge to enter the SPO or to enter it with some modifications.

If you already have a divorce or custody order, you need to refer to your order for guidance because every order has its own provisions and changes to the SPO. If you are confused by your order, it is a good idea to ask an attorney to help you review your order.

Please remember that this article is designed to simply give a brief overview of the statute and how its key provisions work when the standard language is used without any edits or tweaks.

In addition, I have created a 2013 Texas Standard Possession Order Calendar to assist you in understanding the Texas Standard Possession Order.

Here are some key provisions in the Texas Standard Possession Order.  Read More

When can I file for divorce in Texas?

A divorce lawsuit can be filed in Texas after you or your spouse have lived in Texas for at least 6 months and a resident of the county you intend to file in for at least 90 days.  If neither of you have lived in Texas for this period of time, then you have not met the jurisdiction requirements to file and you will need to wait to file for the divorce.

 

Agreement Incident to Divorce

As a San Antonio divorce lawyer, I think a lot about my client’s needs during a divorce. On a continual basis, my clients ask about how their divorce can be kept private and away from the public’s knowledge.  One way to accomplish this is to enter what is called an “agreement incident to divorce.” When you are consulting with a San Antonio Divorce attorney, it is a good idea to discuss if this type of agreement is an option for you. An Agreement Incident to Divorce is a way to privately enter an agreement with respect to property division and child issues. Typically, without an Agreement Incident to Divorce, whatever the parties agree to or the judge orders becomes part of a typed Final Decree of Divorce. This document is filed with the court’s records and is a public document.  If you go with an Agreement Incident to Divorce, the agreement is not filed with the court so it does not become part of the court’s record. It is enforceable like a contract, so it is just as good to enter this type of agreement as the regular Final Decree of Divorce.  As a San Antonio divorce lawyer, I typically find that my client’s that have a significant estate prefer to have the Agreement Incident to Divorce over the traditional Final Decree option.

Is adultery relevant to child custody?

This question cannot be answered with a simple yes or a no.  Typically, adultery will not be relevant to a child custody case as long as the children are completely unaware of the affair and it has not touched their lives in any way.

            However, Judges will definitely examine how the new relationship has impacted children and it this could sway their decision when it comes to custody. With respect to children, a Judge’s role is to decide what is in their “best interest”. This is a very broad phrase and it gives the judges great discretion as to what they consider when deciding custody.

            Typically, Judges strongly frown upon children being introduced to a parent’s new romantic partner. Most of the Judges in Texas tend to believe that divorce is hard enough on children without introducing a new girlfriend or boyfriend into the picture.  When this is a concern, a Judge may order a “morality clause” which can prevent a parent from introducing the child to their new romantic partner and/or prohibit the parent from having the romantic partner spend the night with him or her while the children are present.

            As a San Antonio Divorce Attorney, I typically advise my clients to wait on introducing their children to a new boyfriend or girlfriend until the divorce is finalized. This is generally best for children and for my client’s cases.

Annullments

As a San Antonio divorce lawyer, I am asked about annulments on a very frequent basis. Typically, spouses interested in annulments have been married for a very short period of time and realize that the marriage was a mistake.

In Texas, you can obtain an annulment only if you can prove some very specific things, such as mental incapacity, being under the influence at the time of the marriage, or fraud or duress.

The most common type of annulment I have seen is an annulment based on fraud or duress. To obtain this type of annulment, a spouse must prove that their souse used fraud or duress to get him/her to marry and they have not voluntarily lived with the spouse since learning of the fraud or duress. What is fraud though? Fraud could include a variety of different promises or representations that are later on revoked by a spouse. One example would be inducing someone to marry promising love and devotion and then after being married making it clear that the marriage is just for immigration purposes and that there will not be a marital relationship.

If you are considering annulment, the Law Office of Rebecca J. Carrillo can assist you in examining if you qualify and discussing your options. Please call us today at 210.202.2323.

 

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