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Frequently Asked Questions for Moms Facing Divorce

Q: How much child support will I get?
A: This is the Number 1 most-asked question that we get from divorcing moms. The answer will vary from state to state. In Texas, child support is based on a set of guidelines from the Texas Family Code. First, you must figure out the net monthly resources of the person paying child support. You look at every source of income that person has, and try to find an average monthly gross number. Then you deduct for federal income tax withholding, social security, Medicare, union dues and the cost of the child’s health insurance (if this person is covering the child). The number you are left with will be the net monthly resources. Then a percentage is applied to that net number based on the number of children: 20% for 1 child, 25% for 2 children, 30% for 3 children and so on. There are other factors that can affect the amount of child support, for example special needs of a child.

Q: Am I entitled to “alimony” or “spousal support” from my husband? How much? How long can I receive spousal support?
A: In Texas, there are 2 ways to qualify for spousal maintenance (similar to alimony). First, if you have been married 10 years or more, and lack the ability to provide for your MINIMUM needs, and are actively trying to get back into the workforce, then you may qualify for spousal maintenance. The second way is to show that your husband has been convicted of family violence within the 2 years before the divorce. It is very difficult to get awarded spousal maintenance in Texas. Even if you do, it will be the lesser of $2,500 per month, or 20% of his net monthly income. You can receive spousal maintenance for no more than three years.

Q: How soon can I be divorced? How long does a divorce take?
A: In Texas, the absolute shortest time a divorce can take is 61 days. This is because a divorce petition must be on file for 60 days before the divorce can be finalized. Other states have different “waiting periods”. It is theoretically possible to be divorced on day 61, but it is very, VERY unusual. A typical divorce case will take 6 months to a year. Hotly contested cases or complex property cases can take much longer – up to several years or more.

Q: Can I get the court to require him to pay my legal fees? I am a housewife, can I force him to pay my attorney fees upfront?
A: Attorneys fees may be awarded in a divorce case. So yes, it is possible that the court will require your (ex)husband to pay your attorneys fees. However, this is completely within the judge’s discretion. This means you are going to have to show the judge a reason why it should order him to pay. For example, all the family bank accounts are in his name, and you can’t access any of the money - in this case, the court *may* pick one bank account and split it between the two of you for both of you to use to pay your attorneys.

There is not a practical way to get your attorney fees paid for “up-front”. At best you will need to pay your attorney something yourself (even if it’s on a credit card), and then you may be able to have the court order your husband to reimburse you. Divorce attorneys cannot work on a contingency basis. This means that they cannot take their payment out of any property award or settlement money you get in the case. They must be paid up front.

Q: Do I have to move out of the home if he says to? Can he kick me out of the house after I have filed for divorce?
A: Your husband cannot kick you out of the house just because he wants to. For him to legally kick you out (or for you to legally kick him out), there would have to be an order from the Court. This almost always requires a hearing where both people can tell their side of the story.

There are certain situations where the person filing for divorce can get the other spouse kicked out at the time they file. For example, if your husband has physically assaulted you, you may go to court and file for divorce and at the same time ask the court to kick him out of the house because he is a danger to you. But this is reserved for situations where one spouse is a danger to either the other spouse or the children.

Q: Will I receive preference from the Court over the father of my children when it comes to establishing the primary residence of the children on the basis that I am the mother of the children?
A: No, not on the basis that you are the mother – that would be gender discrimination and it is expressly forbidden. That being said, what the court will look for is who is/has been the primary caregiver for the children. Stereotypically and historically, this has been the mother. However, our modern society is seeing a lot more working moms and stay-at-home-dads, so the stereotype doesn’t really apply anymore. Think about who gets the kids ready for school in the morning, who fixes their meals, who takes them to soccer practice, who stays home with them when they’re sick, who makes doctor appointments, etc. The parent who does the actual care-taking is the one who will get primary custody.

Q: Can I move out of my county or Texas with the children?
A: Not while your divorce is going on. The children will have to stay within the court’s geographical jurisdiction – which means staying in-county.

In most cases, the judge will make orders that say the children’s primary residence is restricted to a specific geographical area. This may be one county (Dallas County), a group of counties (Dallas County and contiguous counties), or the state of Texas. If your orders say this, you may not move with the children even after the divorce is final. YOU can move, but the children must stay. If you have good cause to move with the children, you can (through the legal processes) ask the court to lift this restriction.

Q: What about adultery? Do I get more since he was the one that cheated?
A: Fault in the breakup of the marriage is one factor that the judge can look at when dividing up the marital property. If he spent a lot of community property money on the person he cheated with, then that can certainly be taken into consideration – that’s a hard dollar amount rather than a “he’s a jerk” penalty, so the courts can work with that more easily.

The bottom line is that you *might* get a slightly bigger share if you can prove he cheated, but you won’t get everything. Unfortunately, in our modern society adultery is shrugged at. The area where it seems to make the most difference is when the new lover(s) is/are paraded around in front of the children. Even then, however, this has more impact on a child custody determination, than a property division.

Q: Is there legal separation?
A: Texas does not recognize a status of “legally separated”. However, married couples living separately can enter into marital property agreements that have basically the same end effect of dividing up property that a divorce would.

You can also file a Suit Affecting the Parent Child Relationship (SAPCR) while still married. This kind of lawsuit is used to make a legal determination of which parent gets which rights and duties with regard to their children. It also will establish visitation schedules and child support.

Q: I want sole custody, is that possible? 
A: If you have a solid reason for it, yes, it is possible. It is presumed under the Texas Family Code that it will be in the child’s best interest for the parents to be named JOINT conservators. However, if you can show the court that it is NOT in the child’s best interest for you and your ex to be appointed Joint Conservators (like he’s a drug addict, physically abusive, etc.), then the court may appoint you as the Sole Managing Conservator.

Don’t confuse “Sole Managing” with “He’ll never get to see the kids, and he keeps paying me child support”. That’s not how it works. Typically, even with the appointment of one parent as Sole Managing Conservator, the other parent will still have standard visitation. Conservatorship (sole or joint) has to do with who gets to make decisions for the child – not with who gets visits and when.

Q: When can I start receiving child support?
A: First, the court must sign an Order for child support, directing the children’s father to pay a certain amount per month in child support, and directing on what day(s) each month that support will be paid. This may be a Temporary Order, Divorce Decree, Final Order in Suit Affecting Parent-Child Relationship, etc. At the same time, the court will also sign an Employers Withholding Order, which directs the father’s employer to withhold child support from the father’s paycheck.

The child support money will then be deducted each time the father gets paid. This money will be sent by his employer to the State Disbursement Unit, which in turn will send it to you. Getting an account set up with State Disbursement can take some time. It may be a few weeks to a month or so before you receive your first payment. Once the account is set up, it will only take a few days from the time the money is withheld from a paycheck until it reaches your mailbox.

Q: He told me he would take the kids from me if I divorce him. Can he do that?
A: Not without a very good reason, no. The court will look to determine who the primary caretaker of the children is. As in, who gets them ready for school, makes their lunches, takes them to the doctor or little league, stays home with them when they’re sick, and so on. The primary caretaker is generally appointed as the person who gets to decide where the children primarily live (i.e. with them). BUT, the other parent still gets a visitation schedule. If you count up the hours that the kids are awake and not in school, under a standard possession order, both parents really get very nearly the same amount of quality time.

If you have, by your actions, shown yourself to be a danger to your children or incapable of caring for them, then your visitation may be more limited. It is very unusual and requires a very serious set of facts to completely cut off a parent’s visitation with her/his child.

If you are genuinely concerned that your husband will kidnap your kids – this is an entirely different issue. This can be particularly serious in case where the father is a national of another country. If this is your concern, contact an attorney IMMEDIATELY.

Q: Can I do something about my kids being exposed to my (ex) husband’s new girlfriend?
A: While the divorce is pending, yes. You can request the court make temporary orders that neither parent may have overnight guests that they are involved with romantically. Judges will usually grant this request. Sometimes a court will even order that no new romantic interests may be introduced to the children during the divorce.

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