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How to file for divorce when there are child support or custody orders already in place

For most married people, the first time that they get involved in a family law case in Texas is when one spouse files for divorce. However, it does happen from time to time that you may already have court orders in place from prior child custody or child support case. If that describes you and your family then today's blog post from the Law Office of Bryan Fagan should be especially helpful.

What is the first step towards filing for divorce when you already have prior court orders

The most important thing to keep in mind when you have prior court orders on the books is that you may not have to do as much heavy lifting in those areas in the divorce. Unless you want to dramatically change the orders that are already in place you can essentially copy and paste those into your divorce decree.

However, those prior court orders will no longer have any legal effect once your divorce has been finalized. The fact that there is already one set of orders in place for your case, while you are simultaneously working on coming up with additional orders will confuse matters a tad. I would recommend that you hire an attorney to work with you to figure this process out.

You can even hire an attorney to just review documents and give advice on managing the process. Our lawyers will work with you on a limited scope basis if you prefer not to hire us to file documents and attend any potential court hearings with you. Speak to us today about what options are available to you and what we would recommend given your specific circumstances.

If you find yourself in a position where your existing court order is a final custody and support order then you need to determine if all of your children are covered by that order. You may have had a child or two since that order was implemented and the younger child(ren) may not be covered by that order. Many times if you have your spouse on child support payments it was done through the Office of the Attorney General.

Most of the time people will go about it this way in order to save costs. Keep in mind that the Attorney General does not represent you or your children, only the State of Texas. As a result, the court orders that come out of their cases usually don’t reflect your reality all that well. This divorce case is a chance to put your own stamp on the orders where you can get something that is just the way you want it.

What to do if you don’t have a copy of your court order?

The first place you need to start is to review your prior court order. What does it say? What are your responsibilities? What are your spouse’s responsibilities? Who pays what in child support? Are there visitation orders in place? Did you all negotiate some sort of out of court settlement conference (mediation?) to occur prior to any hearings in a potential divorce? This would be important information to have.

However, you may have just taken the order for granted and not kept a copy of it in your home. Basically, if you and your spouse still live together, he pays the child support on time and doesn't try to do anything foolish with the children (like take them from your home or unenroll them from school) you may have had little need to keep the order around. However, if you are contemplating divorce you need to be able to have a plan in place on what to do with the pre-existing court orders.

A copy can be viewed online for free through the district clerk of your county. In Harris County, you will have to set up a username and password to view the information but that is not difficult to do. Of course, if you hire an attorney to represent you in this case then the attorney will be able to access that information for you. From there, you would meet with your attorney to see what the order says and what needs to be changed or fine-tuned since the time that order was issued.

Are you in position to file for divorce in Texas?

Just because a court was able to issue a child support order four years ago for you and your family does not mean that you are still in a position to get a court order from a Texas family court. The court in Texas needs to have jurisdiction over you and your case. A good rule of thumb to go by in this area is to see whether or not you have lived in Texas for the past six months and have been a resident of your home county for the past ninety days. You can get qualify based on your residency or your spouse’s.

What if you are in the military and live away from Texas? Do the same rules apply?

If you or your spouse are serving in the military and do not reside in Texas currently you can still file for divorce here if the following circumstances are true. First, Texas would have needed to have been your home state or that of your spouse for at least six months. As we saw before, the county in which you are trying to establish jurisdiction must have been your home for the prior 90 days.

The same rules apply if it was your spouse who is in the military and you have joined him or her overseas or in another state. As long as Texas is your home state, your time spent overseas or outside the state counts for purposes of establishing residency and jurisdiction in Texas.

Can you file for divorce in Texas even if your spouse doesn’t live here?

As we noted before, you can establish jurisdiction in Texas for divorce as long as you or your spouse qualifies. Once it is established that you meet the residency requirements then it does not matter where your spouse resides for the purposes of being able to file the divorce. However, a Texas family court must have personal jurisdiction over your spouse in order to impose an obligation on your spouse to pay child support, for example.

Do you have to file for divorce in the same county where your prior court order came from?

You can, but it is not necessary to do so. If you and your spouse are separated, you have a couple of options to file your divorce: in the county where your spouse resides or in the county where you reside. The jurisdictional rules that we have gone over a couple of times already in today’s blog post would apply to this discussion. The custody/support order from one county can be transferred into the divorce case in another county if that is what you want to do. If you file for divorce in the same county where your custody/support order was filed, then you should file your divorce under the same cause number as the prior order.

What is the expected time length of a divorce case in Texas?

Unless there is a threat of domestic/family violence, your divorce in Texas will take at least sixty days. The reason for this is that Texas has a 60 day wait for divorces to give you and your spouse a period of time to cool off and consider whether you want to actually get divorced. I figure that if Texas didn’t have this waiting period many more people would get divorced. Since our state has determined that people remaining married is (usually) a good thing the waiting period is a method to help encourage people to stay together.

Specifically, here are two circumstances that would allow a judge to waive the sixty-day waiting period for divorces. First, if your spouse has been convicted of or has received probation for a crime involving family violence against you or a member of your household then you can get the 60 day waiting period waived. Also, if you have an active protective order against your spouse because of a family violence charge during your marriage then the 60 day waiting period is waived.

This doesn't mean that every divorce will be completed in as little as sixty days. All it means is that this is the minimum time to get a divorce. Most divorces take longer, though how much longer is dependent largely on the circumstances of your case. In the event that you and you cannot come to an agreement on any issues of your case it is likely that your case will take much longer to complete. However, if you and your spouse can negotiate and settle the issues of your case before a trial is necessary then your case could conclude much faster.

In what situations would you need an attorney to represent you in a divorce case?

There is no requirement in Texas that you hire an attorney to represent you in a divorce. After all, you likely got your first court order without the assistance of an attorney. However, I would tell you that divorce cases are much more complicated than child custody or child support case. Not only are the well being of your children involved here, but you also have to give consideration to the financial implications of a divorce.

When there is this much at stake it is always wise to at least consider hiring an attorney to represent you. Next, when you make a decision to speak to an attorney it is smart to talk to an attorney who has family law experience. Many attorneys will tell you that they are able to represent you in a divorce. This is true- you do not need special training to represent a client in a divorce case. However, like anything else, experience matters. If you can hire an attorney who has been through many divorce cases it is better than hiring a lawyer who simply wants to earn an attorney’s fee but has never helped a person get through a divorce before.

Specifically, you need to determine how safe you believe you and your children are. If you are concerned about your safety or that of your children then you almost definitely need an attorney to represent you in a divorce. Next, if you and your spouse do not agree on anything in your divorce then you ought to hire a lawyer. Disagreements lead to court and going to court without a lawyer in your divorce is a bad idea. Remember that your home, your business, your retirement, investment, savings and most importantly your children are at stake here.

Finally, if you are spending your last dollars on an attorney and will be left with little in savings to live on after your divorce then I would recommend that you hire an attorney. Spousal support, spousal maintenance, and alimony are not easily awarded in divorce cases in Texas. You need the expertise of an experienced family law attorney in order to secure these rights you may be entitled to.

Interested in learning more about divorce? Stay tuned to our blog tomorrow

If you can't wait until tomorrow to find out the answer to a question that you have, please consider contacting the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week with one of our licensed family law attorneys. Our lawyers take a great deal of pride in representing the clients we work with. You are our neighbors in this community and by the end of your case, we believe that you will feel that you have made the right decision to hire our office. We specialize in family law cases and have worked on behalf of clients in all the family courts of southeast Texas. Thank you for spending part of your day with us today.

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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.

divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, TexasCypressSpringKleinHumble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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