Many people get very upset if they get served with a Petition for Divorce that includes a Temporary Restraining Order. In most cases there is no need for alarm. In most divorce cases it is common practice for the attorney to include a Temporary Restraining Order (TRO) if there is a need for a temporary hearing. The reason for this is that without the TRO the Court has to wait for almost thirty days to schedule the temporary hearing. In Texas the law provides that a person that is served with a lawsuit has to file an Answer with the Court with in twenty days plus the first Monday. (So start counting the day after you get served and count to the twentieth day. Then jump to the next Monday. That is the deadline for filing an Answer).
However, if there is a TRO in place the Court has to schedule a hearing within fourteen days. In divorce cases it is often very important to resolve temporary issues quickly. An example which spouse will have to move out of the marital residence and when.
A standard TRO does not force anybody to move out of the marital residence. It normally just states that you can’t keep your spouse from living there until the temporary hearing. Another misconception is that a standard TRO keeps the party from having contact with the children. It normally states that the party can’t keep the other parent from seeing the children.
There are instances where the Judge might sign a TRO that forces a spouse to move out of the marital residence. That is in a situation where there has been family violence. Also, if there are allegations that one spouse has put the children in danger or has actually harmed the children the TRO might include an order keeping the spouse away from the children until the hearing. Those TROs must have an affidavit from the other spouse detailing the alleged family violence or the alleged danger to the children.
Most all TROs have provisions that prohibit destroying or selling property, hiding money changing beneficiaries on insurance policies among other things. They will also have provisions that prohibit abusing your spouse or the children or making harassing or abusive comments. Many people read this and think that they are being accused of doing all the things listed in the TRO. That could not be farther from the truth. If you have never done any of the things in the TRO, then just keep doing what you have been doing and make sure you go to the hearing.
Categories: Divorce, Topics of Interest
There is no such thing as alimony in Texas law. However, the Texas Family Code has a chapter titled “Maintenance”. This section permits the Court to order that one spouse pays post divorce maintenance to the other spouse after the divorce is final. There are many restrictions on the Court being able to award post divorce maintenance. However, in September of 2011 the Texas Legislature did expand the law to allow more situations where post divorce maintenance could be ordered.
Before September of 2012, the parties had to have been married for more than ten years, the maintenance could not be more than $2,500 per month, and maintenance could not be ordered for more than three years.
The new law allows maintenance to be paid for a maximum of five years if the parties were married more than ten years but less than twenty years. If the parties were married for more than twenty years but less than thirty, the court may order post divorce maintenance for up to seven years. Finally, if the parties were married for more than thirty years the court can order maintenance for up to ten years.
Texas Law provides that there is a “rebuttable presumption” that maintenance is not warranted. That means that the spouse that is seeking maintenance has to prove that he/she is entitled to maintenance.
Categories: Divorce, Topics of Interest
Gone are the days when lawyers handled all types of legal issues and disputes. In today’s complex world, most lawyers focus on a limited number of practice areas. If you are contemplating hiring a lawyer for your divorce or any other family law case, it is imperative that you hire a lawyer that has a lot of experience in family law.
Here are three reasons why:
1. The Law.
The Texas Family Code and the case law that applies to family law are dynamic. The Texas Legislature often makes significant changes to the Texas Family Code each legislative session. Consequently, the case law changes too. A lawyer that focuses much of his/her practice in the area of family law will be more likely to keep up with the changes in the law.
2. Children.
In family court, the best interest of the child is always the primary consideration in determining questions of conservatorship, possession and support of and access to the child. What is in the “best interest” of the child might seem like a simple concept. However, what evidence is important and how that evidence is presented is crucial in a trial. An experienced family law lawyer will know what information is important to the judges and will also know how best to present that information. Also, a prolonged “custody battle” can be costly both emotionally and financially for the parent and could harm the child emotionally. A seasoned family law lawyer, will be able to help a parent make an informed decision regarding whether or not to go to trial on the issue of conservatorship.
3. Facts.
Family law cases are usually very fact-specific. An experienced family lawyer can often help the client by predicting the outcome of a case based on a specific set of facts. An understanding of the range of outcomes can be very helpful to a client when trying to decide in what direction to take the case. Unfortunately, many people going through a divorce receive inaccurate information from Hollywood, the Internet, or friends and family members. They often do not understand that an outcome in a friend’s divorce may not be the likely result for them. Even a small variation in the facts of the two cases can result in very different outcomes.
Categories: Divorce, Topics of Interest
