What does "Board Certified" mean?
Board Certification is a voluntary designation program regulated by the Texas Board of Legal Specialization for attorneys and legal assistants. Initial certification is valid for a period of five years. To remain board certified, attorneys and legal assistants must apply for re-certification every five years and meet substantial involvement, peer review and continuing legal education requirements for the specialty area.
To become Board Certified in Family Law, an attorney must have:
· Been licensed to practice law for at least five years;
· Devoted a required percentage of practice to Family Law for at least three years;
· Handled a wide variety of Family Law matters to demonstrate experience and involvement;
· Attended Family Law education seminars regularly to keep legal training current;
· Been evaluated by fellow lawyers and judges; and
· Passed a 6-hour written examination concerning Family Law.Approximately only 1% of Texas Attorneys are Board Certified. Christopher C. Merritt has been Board Certified in Family Law since 2001.
Why should I hire a board certified attorney?While all attorneys licensed to practice law in Texas are able to handle family law cases, an attorney who is board certified in family law has devoted a substantial percentage of his practice to family law and has significant experience in dealing with family law cases in the courtroom, in addition to having undergone rigorous testing in this area. Since your case involves those items that are most important to you, your family and/or property, hiring a board certified attorney gives you the security of knowing that you have an attorney that is experienced in this area of the law and knowledgeable about the issues that may arise in your case.
What do you charge for your services?Mr. Merritt’s fees are $300.00 per hour. Legal assistant fees are up to $95.00 per hour. Additionally we also charge for expenses such as filing fees, service fees, copies, long distance, etc.
Who pays the fees?In agreed divorces, most couples agree to pay their own attorney fees. However, there are times when the courts can require the community property to pay for attorney fees. Further, attorney fees are sometimes available in child custody or enforcement actions.
What forms of payment do you accept?
We accept cash, checks, money orders, and Visa/MasterCard.
How much will my divorce cost?This will depend on multiple factors of your case such as property disputes, child custody issues, protecting assets and/or going to trial. Costs can vary with most cases being between $2,500 and $25,000. However, the more issues resolved between yourself and your spouse without the assistance of a lawyer, the cheaper your divorce will be. Further, in most cases we first encourage mediation rather than court intervention in an effort to minimize costs.
How can I save money in my case?Client involvement can directly affect costs. We encourage our clients to actively participate in the preparation of their own case. We often give "homework" assignments including gathering financial information, making lists of witnesses with knowledge, and getting prepared for YOUR case.
How long will my divorce take?After the filing of the Original Petition for Divorce with the court, the court
cannot grant the divorce for at least 60 days, a “cooling off” period in the Texas laws.
However, the divorce may take longer if the parties are trying to work out the terms
of the divorce, such as property division, custody of children, child support, etc. If an
agreement is not able to be reached, either party may schedule a hearing at any time
after the 60 day waiting period. At this hearing the judge or jury will hear from each
side and decide the issues that are not agreed to. It is our experience that an “average” divorce takes between six to nine months.Can I keep my spouse from getting a divorce?
In Texas, if one spouse wants a divorce, he or she can obtain one, assuming the
residency requirements have been met. There is no way one spouse can legally
prevent the other spouse from getting a divorce.
What are the steps in getting a divorce?1. Filing the petition:
The first step taken to initiate a divorce is the filing of a Original Petition for Divorce. This is a simple document that names the parties and any children of the marriage and states that one of the parties (the Petitioner), is seeking a divorce and the reason for the divorce (the grounds). The petition may also state some of the things that the Petitioner may ask the court to decide, such as a division of property, orders providing for the children, and attorney's fees. When the Petition is filed the Petitioner must pay a filing fee to the court or usually around $260. The filing of the Petition begins the 60 day waiting period, but it is not a court order and does not establish anything legally. It is merely a statement by the Petitioner that he/she wishes to have the marriage dissolved.
2. Grounds:
The most common ground for divorce is insupportability. The sole allegation necessary in the divorce petition is that "the marriage has become insupportable because of personality conflicts which have destroyed the legitimate ends of the marriage relationship", also known as no-fault divorce. In some states this is referred to as “irreconcilable differences”, a term you may be more familiar with. The law also provides as possible grounds incurable insanity, living apart for three years, adultery, cruelty, abandonment, and conviction of a felony. These other grounds are rarely used, but, if you have such grounds, you should discuss them with your attorney.
3. Residency:
The next important item is residency. You or your spouse must have been a resident of the State of Texas for a period of at least six months and a resident of the county in which you seek to file suit for divorce for a period of a minimum of ninety consecutive days immediately prior to filing the Petition.
4. Service on the Respondent:
The court must have some evidence that the other spouse (the Respondent) has received a copy of the Petition and therefore knows that a divorce lawsuit is actively pending. One way to provide this evidence is for the Respondent to file a Waiver or an Answer. The Waiver states that the Respondent has received a copy of the Petition. It is voluntarily signed by the Respondent and notarized and then filed with the Court. If you are asked to sign a Waiver by your spouse or your spouse's lawyer, do not do so without first consulting your own attorney. It may contain additional language that can seriously affect your rights.
The Respondent may instead file an Answer, usually prepared by their attorney, the thereby enter their appearance in the case.
If the Respondent does not file a Waiver or an Answer, the Petitioner must arrange for a constable or private process server to hand a copy of the Petition to the spouse. This method is called service of process or service of citation. After serving the petition the constable or private process server returns the citation to the courthouse, where it is filed and establishes proof that the Respondent has received a copy of the Petition. This method costs the Petitioner a service fee of approximately $40 and may potentially embarrass the Respondent. It can be avoided if the Respondent voluntarily enters an appearance in the case by filing either a Waiver or an Answer. Once served, the Respondent will be obligated to file an Answer with the court within a set period of time.
I have been served with lawsuit paperwork . . . what do I do now?
If you have been formally served with paperwork notifying you of a lawsuit, you should contact an attorney immediately to schedule a consultation. If you fail to file an Answer to a lawsuit within a timely manner a default judgment may be entered against you adversely affecting your rights.
What are Temporary Orders?One or both of the spouses may need court orders immediately after filing for
the divorce to determine how the parties finances and/or relationship with the children will be handled until the divorce is final. These Temporary Orders potentially include child support, temporary alimony, child custody, or provisions as to who pays what debts while the divorce is
pending and who has the right to temporary use of the house and other property. If
you believe you need Temporary Orders, speak to your attorney about it at the time
of your first appointment.
How can the terms of the divorce be worked out?1. By Agreement or by the Judge or Jury:
The terms of the Final Decree of Divorce (the legal document dissolving marriage) are either determined by agreement of the parties or, in the event the parties are not able to agree, by the judge or jury.
2. By Agreement:
During the 60 day waiting period, the parties and their lawyers attempt to negotiate the terms of the divorce (division of property and debts, custody/vistiation of the children, child support, etc). The parties can negotiate directly with each other or let the lawyers try to work it out - or some combination of both approaches. Another alternative is mediation. In mediation, the spouses meet with a mediator - a neutral third party who helps the parties try to reach an agreement. Generally your lawyer will also be present a mediation. The idea is to settle the terms of your divorce in a less expensive and less acrimonious manner.
If the spouses reach an agreement, one of the lawyers will write up the agreement as part of the Final Decree of Divorce and both parties and their lawyers will sign it. If the parties agree on the final terms of the divorce, the judge will sign the Decree after a very short appearance in court by one of the parties accompanied by their attorney.3. A Contested Trial:
If the parties do not come to an agreement, all of the contested issues are set for a trial. At trial the judge and/or jury listens to all of the testimony and decides on all of those issues on which the parties could not agree. Most family law cases are heard by the judge without a jury. However, if you want a jury trial, it must be formally requested well in advance of the trial date. If a trial is necessary, the parties' expenses will be considerably higher than if an agreement had been reached because a lot more time is necessary to prepare for and conduct a trial. Additionally, a jury trial takes a good deal more time than a trial by a judge and is therefore a more expensive option.
Can the Decree ever be changed?The property division, if agreed to, is final and binding and the parties cannot later change
their minds about the terms. If the Final Decree is ordered by the judge after a trial, it may be appealable, but only if the judge made legal errors that caused an unjust result or made decisions that were not supported by the evidence. Simply disagreeing with the judge's order is not sufficient grounds to appeal it. If the decree is not appealed within 30 days, it is normally final as to the property division and cannot be changed.But all of the court orders regarding the children are subject to future change. Thus either
party can come back to court later and ask that child support be increased or decreased or that visitation or custody be changed. However, to do so, the party wanting the change must show the court that a significant change of circumstances has occurred that makes this change necessary or that the last order has become unworkable. Such changes are not made lightly by courts.
How can I learn about my spouse’s property and other activities?Often, one of the spouses knows very little about the property belonging to the marriage. Without this knowledge it may be impossible to proceed with negotiations regarding property division. If this is the case, the lawyer can require the other spouse to provide all relevant information about the spouse's property, debts and income. This process is called "discovery" and may take some time depending on the complexity of the parties’ property and finances. Similarly, if child custody is disputed, both parties may require information from each other that are relevant to this issue.
How does child custody work in Texas?Most people think "custody" means which parent has possession of the children most of the time. In Texas, the term custody is not used in this way. Primary custody means which parent has the right to make decisions about the children--such as which school they go to, what doctor they see, and so forth. The amount of time the children spend time with each parent is a completely separate matter addressed below.
Historically, one parent was named Sole Managing Conservator and the other parent was named
Possessory Conservator. The Sole Managing Conservator had the exclusive right to make all
major decisions regarding the children's residency, health care, education, and so
forth. However, as of September 1, 1995, the legal presumption in Texas is that the
parents should be named Joint Managing Conservators. The effect of this presumption is that the rights and powers of a parent are somehow to be divided between the parents or exercised
by joint agreement. When Joint Managing Conservatorship is awarded, the parties or the
judge must decide and write into the decree how those rights are to be exercised.
What is standard visitation?The parties can establish any schedule for each parent's periods of possession of the children that fits their needs and those of the children. In fact, the court encourages the parents to arrange periods of possession by agreement as much as possible and to stay flexible to adjust to circumstances. However, the Final Decree of Divorce must include a visitation schedule that will control if the parties cannot agree in the future. Ideally parties will agree on a written schedule to be placed in their Decree. But if they don't agree on a custom schedule the judge must order one, which typically is the "Standard Possession Order."
If the parties live within 100 miles of each other, this standard schedule allows
for possession by the parent with whom the children do not primarily reside on the 1st,
3rd, and 5th weekends of each month from 6:00 p.m. (or the time school lets out) on
Friday until 6:00 p.m. on the following Sunday (or when school resumes the following Monday); one weeknight each week from 6:00 p.m. to 8:00 p.m. (or from the time school lets out until the time school resumes on the following day).; alternating Thanksgiving and Spring Break holidays; one week at Christmas; and thirty days during the summer break. If this parent lives farther than 100 miles away, the weekend and weekday periods may be modified or omitted and he or she will have visitation given every Spring Break and for six weeks of the school summer break.Sometimes one parent believes that the other's time with the children should be restricted to less than the standard possession order either because the children are very young or because one parent doesn't trust the other one to take proper care of the children. Such restrictions might, for example, mean no overnight periods of possession, not taking the children out of the country, or supervised possession. However, if this restriction is not agreed to by both parents, the court will order it only if it finds that such limitation is necessary for the safety of the children. That said, the court will often restrict overnight possession or lengthy summer periods for infants or very young children. The standard possession schedule described above applies only to children three years old or older.
How is child support calculated?The Texas Family Code has child support guidelines which recommend that the Possessory
Conservator or the non-primary Joint Managing Conservators pay a certain percentage of
his or her net resources in child support. "Net resources" is defined as all income after taxes,
social security, union dues, and health care insurance for the children are subtracted. The guidelines provide for the following percentages, depending on the number of children involved:One child - 20%
Two children - 25%
Three children - 30%
Four children - 35%
Five children - 40%
Six or more children - not less than for five childrenThe court has the ability to vary from these guidelines if it finds unusual circumstances warranting higher or lower support. These percentage guidelines apply only to the first $6,000.00 of the monthly net resources. The court presumes that the appropriate percentage of $6,000.00 is adequate support for children, and it is up to the receiving parent to provide evidence to the court that the children need more. If the paying parent nets significantly more than $6,000.00 a
month and the children's needs justify higher child support, the court may order higher support. Additionally, the court typically orders the child-support paying spouse to also pay for the cost of the children's medical insurance. Uninsured medical expenses, including co-pays or deductible amounts are generally paid equally by each parent.The income of the custodial parent may be considered in setting child support, but it will probably have little effect.
How will my martial property be divided?At divorce, all of the property the two of you own must be divided at the conclusion of the divorce proceedings. The first question to ask in deciding how to do this is, "is the property
community property or separate property?"
Separate vs. community property:Simply put, community property is all of the property the two of you have acquired
during the marriage due to your earnings. Separate property is any property you
owned before marriage or have acquired by gift or through inheritance, as well as certain types of monies recovered individually from lawsuits.Separate debts are those debts (1) incurred before marriage and (2) incurred
during marriage that were secured by the separate property of one spouse with a statement from the lender to look only to that spouse's separate property for security of that obligation.All separate property and separate debts are automatically awarded to the
spouse whose name they are in. The other spouse has no claim on the separate property and
no legal obligation for the separate debts.Texas law also provides that, if you divorce in this state but have property that you
acquired while living in another state and that property would have been community
property if it had been acquired in Texas, the court shall treat it as community
property.
Just and Right Division:Community property is usually divided somewhat evenly between the spouses, just as are all community debts. However, if you do not agree on the division of property and the judge must decide, the judge will have some discretion in dividing the property unevenly. If one spouse has significantly less earning capacity that the other, the judge will probably take that into account and award that spouse somewhat more than half of the community property. The judge may do the same for an innocent spouse who has suffered from the other spouse's abuse, mismanagement of community funds, or if adultery has occurred. Other disproportionate divisions of community property may be made in unusual circumstances, such as the disability of one spouse or of a child.
Also, if community assets have been used to make payments on one spouse's separate property, the community may have a right to be reimbursed for that expense. For example, if the husband owned before marriage the home that the spouses live in, and during the marriage the spouses made payments on the house from their earnings, the wife may be entitled to some reimbursement for those payments at divorce. Similarly if one spouse's separate property has contributed to the community estate or to the other spouse's separate estate, that contributing spouse may be entitled to reimbursement.
Determining whether property is separate or community and whether there is any right to reimbursement can be complicated. You may be asked a lot of questions about the date on which property was acquired, the source of funds, and the credit used to purchase.
Method of Dividing Property:Whenever possible, the community property should be divided at divorce so that each party gets a fair share. This is usually done by determining what each asset is worth and then dividing the property so that each person gets approximately equal value share. When cash or other liquid assets are involved, it is not difficult to make such a division. If an asset cannot be divided or the parties do not want to divide it, it can be given to one spouse and something else of similar value given to the other spouse. Parties often get into arguments about who gets the lawn mower and whether the bed is worth more than the refrigerator. Such arguments can cost more in lawyer fees than the actual property is worth, so it is best to be prepared to be reasonable and willing to compromise in these situations.
Sometimes there is simply no way to divide an asset evenly. For example, the parties
may own a home or a family business which constitutes most of their community
assets. If one of them is awarded the house, there is not enough community property to compensate the other with something else of equal value. This issue can be addressed in various ways. The other party may be given a lien against the house to be paid off over time or when the
house is sold, or both parties may continue to own the house together after the
divorce with an agreement to sell it and split the proceeds or loss at a later date.
Division of Debts:Assets are not the only property divided upon divorce. Liabilities or debts must also be divided.
Mortgage:
Often parties agree that one spouse will keep the house after divorce. Technically, the other spouse (who was not awarded the house in the division of property) remains liable for that house mortgage until the note is paid off or refinanced. In the decree, the judge will award the house to one party and order that spouse to pay the note but if he or she does not make those payments, the mortgage company can still look to the other spouse for payment. However, if a party defaults on the mortgage, an instrument called a Deed of Trust to Secure Assumption (signed at the time of the divorce) gives the other spouse to the right to foreclose and resume ownership of the house.
However, both parties’ names for the mortgage may still appear on credit reports, thus possibly
affecting credit and the ability to take out a mortgage on another residence. Sometimes if you send send the mortgage company a copy of the Divorce Decree, Deed and Deed of Trust, they will remove one spouse’s name (the party who did not receive the house in the divorce) from the credit reports.Also, in attempting to obtain a new mortgage sending these same documents to potential lenders from whom you are seeking credit, may make them more likely to ignore that mortgage obligation.
Credit Cards:
You and your spouse must decide who is going to keep which credit cards, and then it is up to you to notify the credit card companies that you are divorcing and that (1) if the account is one that your spouse is keeping, you are not responsible for any future debts on it, and (2) if it is an account that you are keeping, you are not responsible for any future debt that your spouse incurs on it. It is a good idea to send letters signed by both of you if you can.
Keep in mind that creditors are not bound by the division of debts in your Divorce Decree. If your spouse agrees to take on a credit card debt that was held in both names and he or she does not pay that debt, the credit card company can sue you for the amount owing. Therefore, it may not be a good idea to equalize the division of property by giving your spouse debts
that he or she may not pay.
Handling of property and debts after the Petition is filed:Do not purchase or sell any property of significant value or incur a significant
debt during your divorce without first consulting your lawyer. You could be
penalized by the court for doing so.
Is alimony allowed in Texas?In all divorces filed after August of 1995, the court may order that one spouse
pay support to the other after the divorce if final. In many states this support is called “alimony” but in Texas it is referred to as spousal maintenance. However, the availability of spousal maintenance is limited to cases in which (1) the marriage lasted at least ten years, (2) the
spouse seeking support lacks sufficient property to provide for his or her minimum
reasonable needs, and (3) that spouse (a) is unable to support herself or himself due
to an incapacitation (such as physical or mental disability) that prevents that spouse from being
employed, or (b) lacks earning ability adequate to support his or her minimum
reasonable needs. A spouse may also, however, seek spousal maintenance if the other spouse has been convicted of or received deferred adjudication for a criminal offense involving family
violence within two years before the divorce was filed or during the pendency of the
suit.There are limitations on awards of spousal maintenance. Unless the spouse seeking alimony has a serious physical mental disability, the court may not order support for more than three years. The amount of court-ordered alimony is not to exceed the lesser of $2,500.00
or 20% of the spouse's average gross monthly income and in no event should it be for
more than the "minimum reasonable needs" of the spouse seeking support. However, all of these limitations above apply only to court-ordered alimony. The parties may agree contractually to alimony in any amount and for any length of item.
Is counseling required?Clients often wonder if they can make their spouse get counseling to save the marriage or to help the children address the change of divorce. While it rarely occurs, a judge can order counseling during the divorce process if it appears that it might save the marriage. The judge can also order
counseling for the parents or the children if it appears to be necessary for the children’s well-being.
Final Comments:Divorce is almost always a painful experience for the whole family. However, this does not mean that divorce is wrong or a mistake. As difficult as the separation is, it may be better for everyone, including the children, than maintaining a destructive family relationship. It can also be an opportunity for you to grow and to explore new parts of yourself as an individual.
Professional counseling during this time is often a very good idea. No matter how balanced and well-adjusted you are, you will probably experience a wide range of emotions while going through this major change in your life. A good counselor can help you work through those emotions in a manner that promotes your mental health and peace of mind.
A good counselor can also advise you as to how to help your children through
this time of transition. And all the children need special help when their parents divorce, no matter how calmly they may seem to be taking it.
What is Collaborative Law?Collaborative Law is an alternative to traditional divorce. Instead of focusing on getting the largest financial reward no matter the human or financial cost, the parties try to find "win-win" solutions that meet the needs of both sides.
All participants agree to work together respectfully, honestly and in good faith. No one may go to court, or even threaten to do so, as long as they are in the Collaborative Process. In the unlikely event that a party feels that court is a better alternative, the Collaborative Law process terminates and both spouses must hire new lawyers to take their case to court.
Each professional on the Collaborative Law team owes a primary allegiance and duty to their own clients. But they also know that the way to serve the highest interests of their clients is to act with integrity in the spirit of cooperation and mutual respect.
While a marriage may be ending, the Collaborative Law process recognizes that relationships and obligations often continue - especially when children are involved. It allows spouses to formulate an agreement that focuses on their most important individual and mutual goals. This process helps all family members move forward in a positive way.
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