Family Law and Domestic Litigation

Led by Jeffrey R. McCombs, practicing over 17 years of practice in family law, the attorneys at the Law Office of Jeffrey R. McCombs provide superior, dedicated and compassionate representation in family law. We understand the intricacies of the practice of family law, enabling us to provide exceptional representation to each of our clients. We are sensitive to the unique difficulties that our clients face emotionally and financially, and we tailor our representation to meet the individual needs and goals of each client.

We provide the highest professional and ethical standards in the following areas of family law:

  • Divorce
  • Custody
  • Visitation
  • Modification of custody and support
  • Division and Valuation of Community and Separate Property
  • Alimony/Spousal Support
  • Child Support
  • CPS Cases
  • Paternity
  • Grandparents Rights
  • Prenuptial and Marital Agreements
  • Mediation
  • Adoption

Custody or Divorce Modification

Common Law Marriages In Texas

Texas Child Support Guidelines

 
FREQUENTLY ASKED QUESTIONS
 

DIVORCE

Question: What if the other spouse does not want a divorce?
Answer: It only takes one spouse to want the divorce in Texas for it to be granted.

Question: Will the court issue a temporary order granting me custody of our child(ren)?
Answer: Either parent can ask the court to enter temporary orders. If these ordered without a hearing because of an emergency, then there will be a hearing within 14 days. The court will enter orders regarding child support, property, and spousal support. These temporary orders, if entered by an Associate Judge, can be appealed to the elected judge. Currently, temporary orders entered by the elected judge cannot be appealed until the entire case is over. While Tarrant County and Dallas County have associate judges, not all of the other counties have associate judges.

Question: Can I file for divorce if I cannot locate my spouse?
Answer: Yes. However, depending on the case and method of notice, this could become expensive. In some cases, a court will have no choice but to appoint an attorney to represent the absent spouse. That attorney's fees are usually paid as court costs by the filing spouse. All efforts to find your spouse should be explored first.

Question: How long will it take to finish my divorce and can I get remarried that same day?
Answer: With very few exceptions the divorce must be filed with the court for at least 60 days before the divorce can be granted, even if everyone agrees to a shorter time. Also the time for your spouse to file answer must have lapsed as well if you are attempting to be granted a divorce by default. If there are contested matters before the court, the divorce can take considerably longer. You will need the court to waive the waiting requirements if you wish to marry another person immediately.

Question: If my spouse and I agree to divorce and agree on all the terms that are to be included in the divorce decree, can we use the same attorney?
Answer: Not really. An attorney cannot represent both parties in a divorce action. Some attorneys get around this by only technically represent one party and the other party represents himself. These situations need to be handled carefully to avoid conflicts of interest and waiving the attorney-client privilege.  It is in each party's best interest to obtain an attorney, but there is no requirement that both party's be represented by an attorney.

Question: Can I represent myself in a divorce?
Answer: Yes. A person has the right to represent himself or herself before the court; however the court will most likely treat you as if you were a lawyer. Do not expect the court or court staff to assist you. Do not expect the Judge or court staff to tell you if you did or did not do your paperwork correctly. Many times you will not know there is a problem until long after you thought your case was over. Many of our clients wished they had hired an experienced lawyer at the beginning after the fact.

Question: What If I just want to file for legal separation?
Answer: Texas does not have a cause of action for legal separation, only for divorce or annulment.

Question: What is the difference between a restraining order and a protective order?
Answer: A protective order will be issued if the court finds that family violence has occurred and is likely to occur in the future. Violation of a protective order may result in criminal prosecution.

In general, a restraining order is intended to keep a party from harassing, threatening and/or causing physical harm to the other party. A restraining order is also intended to keep a party from draining financial accounts prior to the time that a hearing can be held. A restraining order is also intended to keep a party from destroying, hiding or selling community assets prior to the time a hearing can be held. In other words, the purpose of a temporary restraining order is to help maintain the status quo between the parties until there is a hearing.

Question:  Can I immediately force my spouse to leave our home, or can my spouse immediately force me to leave our home?
Answer:  Yes if there is an emergency with an immediate danger. A hearing over the matter must take place within 14 days if the Court grants this injunction without the other spouse in attendance.

Question: Does joint managing conservators mean that the kids will live with each parent one half the time?
Answer: No. Although Texas law typically presumes that parents should be named joint managing conservators, it does not mean the physical possession is fifty-fifty. Although some courts will allow the parties to agree to just about anything.

Question: What course of action will the court take if both parents want to be named the primary joint managing conservator?
Answer: Divorce cases involving custody disputes almost always involve a social study. The court will appoint a social worker to meet with both parents and the child(ren), gather information about each parent's involvement with the child(ren)'s education, medical decisions, extracurricular activities and daily routines, the parents' employment and health records, as well as the child(ren)'s school and health records. The social worker may choose to visit each of the parents’ homes to evaluate their living arrangements. The social worker then submits a recommendation for conservatorship, possession and access to the court.

Question: If I am awarded custody of the child(ren), how much child support can I expect to receive?
Answer: Typically child support guidelines are calculated at 20 percent of that party's net income for one child, 25 percent for two children, 30 percent for three children and 35 percent for four children and so on. As additional child support, the noncustodial parent will be required to either provide health insurance for the child(ren) or, if the custodial parent is providing health insurance for the child(ren), reimburse the custodial parent for the cost. There are times when the court may deviate from these guidelines. The court may also factor in other items such as if the non-custodial parent is supporting other children at his home or through child support to someone else. Depending on how much money the person paying child support makes, the support order could come down to the child's needs.

Question: Are overtime wages or bonuses included in gross income when child support is calculated?
Answer: Yes. Any income the party paying child support receives from any source, including overtime, bonuses and dividends from investments, may be included as income.

Question: Do my child support payments go into the child(ren)'s account?
Answer: No. As stated above, child support is paid to the party considered to have primary custody of the child(ren) and that party is given discretion as to what expenses the child support will pay.

Question: Can I pay my child support directly to my spouse?
Answer: Not typically, as most courts now order child support payments to be made to a local registry or disbursement unit. The registry or disbursement unit will post receipt of payments so that you cannot be accused of not making payments. On the down side, if you do not make the payments, the local registry or disbursement unit works to your disadvantage. The court may presume that if the local registry does not reflect that you made a payment, you didn't. The burden of proof then falls on you. If you cannot prove you made payments, you may be subject to sanctions, including being thrown in jail, losing occupational licenses and your driver's license. Most courts do not allow "informal child support."

Question: Does child support begin once I am divorced?
Answer: Child support begins when the court orders you to start paying child support, sometimes as soon as the first day of the month following the filing of the divorce action. There are circumstances under which a person can be ordered to pay "retroactive child support."

Question: What is wage withholding?
Answer: Title IV-D requires that all cases when child support payments are ordered, the court must order that child support be withheld from the paychecks of the person who is obligated to pay child support. There are very few exceptions to this rule.

Question: How are uninsured medical bills paid?
Answer: Normally, uninsured medical expenses incurred for the benefit of the child(ren) are to be paid 
50/50 by each of the parents.

Question: How old does a child have to be before they can choose who they want to live with?
Answer: As of  September 1, 2009, a child twelve (12) years of age may express his or her preference to the judge if either party requests the court to confer with a child, but a child's preference may no longer be substantiated by affidavit. Nor is the child(ren)'s preferences absolutely binding on the court.

Question: Once a court orders a specific amount of child support, can that amount ever be changed?
Answer: Yes. Family law cases are very fluid. The court has jurisdiction to modify the conservatorship, access and support of the children in the event of a substantial and material change in the circumstances of the child or a party. For example, if you become aware that the party who is paying child support has a greater income than when the court ordered the child support, either because of a raise, a promotion, a new job, etc., you are permitted to seek an increase in child support. Conversely, if a party who pays child support has a lesser income then when the court 
ordered child support, that party is permitted to seek a decrease in child support. There is a legal presumption that, if more than three (3) years has elapsed since the entry of the last child support order, and child support increases more than $100.00 or 20 percent, then a substantial and material change is presumed.

Question: Because Texas is a community property state, does that mean all assets will be divided equally?
Answer: Not necessarily. There are two (2) types of property: (1) separate property and (2) community property. The law is to have a "fair and equitable" division. We recognize that "fair and equitable" is often in the eye of the beholder.

Generally, separate property is any property that belonged to a party prior to marriage or was received by gift, inheritance or personal injury claim. Of course, law is never simple. The issue of separate property is a complex and varied issue and should be carefully discussed with an attorney.

Community property is the concept that all property accumulated during the marriage is equally owned by the spouses, such as the marital residence or a second residence, furnishings and appliances, vehicles, financial assets, investments, retirement accounts and privately owned businesses. If the parties are unable to reach an agreement with respect to the division of the community property, the court will divide the community property in a just and right manner by taking into consideration many different factors, including but not limited to fault in the break up of 
the marriage, the earning capacity of the spouses, the health of the spouses and the age of the spouses.

The court may so divide certain intangible property, such as the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that might be available for valuation and division. A party's attorney may help with this issue through discovery. During the discovery process, the parties' attorneys exchange documents that disclose each party's income, assets and liabilities. Additionally, each spouse may be required to answer questions designed to gather all necessary information about his or her assets and income.

Again, the issue of separate and community property is complex and should be carefully discussed 
with an attorney.

Question: Can the court divide community debts among the spouses in a divorce?
Answer: Yes, but it is difficult to enforce. The courts routinely order the parties to pay certain debts in a divorce, but if a party does not obey the order and pay the debts he/she is ordered to pay, the court can only render a judgment to the other spouse. Normally, a judgment is not much benefit to the other spouse because a judgment is difficult, if not impossible, to collect from most people. There has to be a large amount of property for a judgment to be effective. The Court granting a divorce does not extinguish a creditor's right from collecting from anyone just because a divorce was granted.

Question: Does the court order dividing debts affect the rights of creditors to take action to collect a debt?
Answer: No. If your spouse does not pay a debt which he/she is ordered to pay and for which both of you are liable, the creditor can sue either or both of you and report it on your credit report. The court cannot issue an order that impedes the rights of a creditor to take action to enforce its rights against either one or both of you. Such action would violate the creditor's Fifth Amendment rights.

Question: Can I receive a portion of my spouse's retirement? Can my spouse receive a portion of my retirement?
Answer: The answer is typically yes. Retirement is a very important and substantial asset of some marriages, especially long-term marriages. While the answer to this question is based, in large part, on community/separate property issues outlined above, a spouse is typically entitled to a share of the other spouse's retirement based on the following formulas:

Pension plan (non-contribution plan):
Number of years married
Number of years in retirement plan x value of retirement plan /2
401K and similar plan (contribution plan):
Value of plan on date of divorce - Value of plan on date of marriage /2
In order to receive an interest in the other spouse's retirement benefits, it will be necessary for your attorney to draft a Qualified Domestic Relations Order (QDRO), which is typically a separate order or decree entered by the court at the time your final decree of divorce is signed. QDROs can be considerably complex and somewhat expensive, but may be very important to you in order to protect your rights and interests. Large companies may have several employee benefit plans (i.e., 401k savings and tax deferral plans, profit-sharing plans, FSOPs, etc.) which will require a separate QDRO. The formula used to evaluate the community interest is different from that stated above. The community interest in these types of retirement plans is the increased or enhanced value of the employee benefit plan since the date of marriage. Retirement benefits should be discussed carefully with your attorney.

Question: What can I do if my spouse's retirement was not divided by the court in my divorce?
Answer: The Court may enter orders providing for the entry of a Qualified Domestic Relations Order, or "QDRO," at any time during or after a decree of divorce is entered.

Question: Is alimony available in Texas?
Answer: In a sense, yes. Texas statutes utilize the terms "court-ordered maintenance" and/or "spousal maintenance" rather than alimony. The court may order temporary spousal maintenance during the pendency of the divorce case, which typically is limited and is dependent on the  circumstances of the parties, and/or post-divorce spousal maintenance for a period time.  It is not common for maintenance to be granted on a final divorce without a really good reason.

Question: Can the wife change her name in a divorce proceeding?
Answer: Yes. Either party can change their name as long as it is properly plead. However, it is not  possible to force the opposing party to change their name if they do not choose to do so.

Question: Can I remarry someone else immediately after my divorce is final?
Answer: No. There is a 30-day waiting period after your divorce is final, unless the court waives the waiting period.

Question: Can I recover my attorney's fees from my spouse?
Answer: Yes, but don't count on it. The court can give you a judgment for attorney's fees but, in most cases, it is not collectible. It is extremely difficult to collect judgments in Texas and few people recover their attorney's fees. It is more common for courts to divide community property in such a way to take into consideration a party's legal fees and costs.

Question: My case is not complicated, can't I just go to mediation and do it myself?
Answer: You most likely will go to mediation before you go to trial. The court will most likely order you to do so. Most people believe their case is not complicated and nobody wants to make a divorce more complicated than it needs to be. It generally takes years of experience to know what needs to go into a final decree and what needs to be left out the decree. While someone might think his or her case is not complicated, he or she may also just be overlooking areas that needed to be addressed but were not. It is often more expensive to fix what should have been done the first time.  

CONTEMPT/ENFORCEMCENT

Question: What is contempt?
Answer: Contempt actions are filed at such a time as a person has violated a court order, including but not limited to child support and possession of the child. The court, upon finding that (1) a person is in violation of a court order; and (2) all of the technical requirements have been met, may have the authority to remedy those violations by ordering jail time, and assessing attorneys' fees and court costs, etc.

Contempt actions, or enforcement proceedings, are quasi-criminal in nature and are the most detailed motion that a family law attorney can bring, especially given that the accused party may lose his/her freedom. It is essential, therefore, that the attorney bringing a contempt action be well trained and experienced in contempt/enforcement.

Question: My ex-spouse (child's other parent) won't follow the court's order. What can I do?
Answer: Any violation of the court's order, including but not limited to a parent's failure to pay child support on time or at all, failure to allow visitation, failure to return the child(ren) at  the end of visitation, and some property issues may be addressed through a contempt action/enforcement proceeding.

As a general rule, failure to pay child support and denial of possession of the child(ren) have nothing to do with one another. Therefore, if your ex-spouse refuses to pay child support, your remedy is a contempt action, not refusing visitation. Of course, the reverse is also true here.

Question: Must my ex-spouse (child's other parent) be personally served to start the enforcement process?
Answer: The child's other parent must be personally served with the petition, citation and notice. Otherwise, the court cannot enter enforcement orders against him/her.

Question: What happens if my ex-spouse (the child's other parent) does not appear in court after being served?
Answer: The court will issue a capias (arrest warrant) and will set a bond to ensure his/her appearance after arrest.

Question: Is it possible for my ex-spouse (child's other parent) to be incarcerated for failure to follow the court's child support or possession order?
Answer: Yes. Enforcement actions have both a civil and criminal aspect. The court may, among a number of choices, jail a person for up to six (6) months for each separate act of contempt.

Question: Can my ex-spouse (child's other parent) he ordered to pay my legal fees?
Answer: It is typical for the court not only to order a person found by the court to be in contempt to pay (or reimburse) the other party's legal fees and court costs, but to place the other parent in jail until the legal fees and court costs are paid in full. This is a form of civil contempt and is usually limited to those cases in which the court believes  the party placed in jail has the wherewithal to pay the fees, costs and/or  support ordered.

MODIFICATION

Question: Do I have to wait a certain amount of time before I can file a suit to modify child support?
Answer: A suit to modify child support may be filed if (1) the circumstances of the child or a person affected by the order have substantially and materially changed; or (2) it has been three (3) years since the order was entered and the amount of child support will differ by either 20 percent or $100.00.

Question: My ex-spouse (or the other parent) is the primary conservator of the child, but I want the child to live with me. Do I have to file a modification?
Answer: Yes. However, you must show the court that either (1) the circumstances of the child or either parent has substantially and materially changed since the prior order; (2) a child is 12 years of age or older and tells the judge in chambers their preference; or (3) the primary conservator has voluntarily relinquished the primary care and possession of the child for at least six (6) months.

Question:  Where will we file for the modification if everyone has moved?
Answer: In the court of continuing jurisdiction. If the child's county of residence has changed since then and the child has resided in that county for six continuous months. A Motion to Transfer Venue may also be filed at that time as well.

Question: Can I recover my attorney's fees in a suit to modify?
Answer: Yes, but the judge has to award these fees and might not do so. Collecting fees is not always possible.

ADOPTION

At this time, our firm is very particular in handling adoptions. We do not accept cases where the parental rights have not already been terminated and the other parent is still alive. The below is general information.

Question: What is the difference between a adoption with an agency and an private adoption?
Answer: In agency adoptions, the agency acts as a go between with adoptive parents and birth parents. The agency can sometimes facilitate the process of the adoption. A private adoption, also called an independent adoption, the adopting parents and the birth parents complete the adoption themselves. Usually with the aid of an attorney.

Question: Can my new spouse adopt my children?
Answer: Only if the other parent's parental rights are terminated prior to the adoption taking place. If the birth parent refuses to voluntarily relinquish their rights, that can sometimes block the Step-parent adoption.  The courts take the involuntary termination of parental rights very seriously.

Question: Can I adopt my grandchildren?
Answer: Yes. But some courts are hesitant to grant the adoption.

TERMINATION OF PARENTAL RIGHTS

At this time, our firm does not typically handle cases where the client is seeking termination of the parent's rights. The below is general information.

Question: I don't want to pay child support and now (s)he is trying to put me on it, can I just sign away my rights?
Answer: Not always. It takes at a minimum every having to agree. With very few exceptions, all judges presume that it is definitely in the best interest of the child to have two parents. More than one judge has stated that it's the police of Texas not to make children orphans.

Question: I'm tired of dealing with the child's other parent, can I terminate his rights?
Answer:  The courts take the involuntary termination of parental rights very seriously. Most likely it would take an agreement on all parties to do terminate. There are grounds for termination for a good legal cause. You should retain an experienced attorney who has handled many involuntary terminations.