How does a Protective Order affect a divorce or custody case?


In Texas, when a party received a Protective Order, it’s usually one of two varieties that effect a divorce or custody case.

The initial protective order, Emergency Protective Order (EPO), goes into place if there is an arrest. EPOs usually last from 30 to 90 days only. They are limited in scope. Their focus is to prevent the alleged perpetrator from contacting the alleged victim or going to the house/work of the victim. These are usually part of the criminal case associated with the arrest.

Protective Orders (not EPOs) require a formal civil court case and are not automatic just due to an arrest. Parties must file a case requesting the full Protective order. A party can request emergency action but usually it’s not needed if an EPO is already in place. A Court hearing is held and a Judge/Court determines if a full Protective Order is needed. These can go up to 2 years, or longer in extenuating circumstances. They usually cover what contact can be made between the parties, if any, and how far away parties need to stay from each other. Sometimes child visitation might be rolled into these Orders, but they’re usually very limited schedules. They do NOT address anything to do with property division or debts.

In a Divorce or custody proceedings in Texas, a Protective Order has no effect on title to real estate. See Tex. Fam. Code 85.023. That means you cannot take someone off the title to a house or other piece of real estate just because a protective order was issued.

A Protective Order might be used as the basis for post-divorce spousal maintenance. Even in a short term marriage, family violence (if a criminal conviction or deferred adjudication) might follow from a protective order. See Tex. Fam. Code 8.051. If that’s the case, then a party can request spousal maintenance (known as alimony in other states) just based on that criminal family violence conviction.

A Protective Order does have an effect on dividing the community/marital estate. Texas Family Code 6.001 through 6.007 provide the grounds for divorce in Texas. If you prove one of the “fault” grounds, cruelty and conviction of a felony being one of those fault grounds, then you may be entitled to a larger share of the marital estate.

In a Texas custody case, or divorce where custody is also a factor, a Protective Order has a huge impact. If the Judge/Court determines there has been family violence (the reason for the protective order) that may limit the party’s right to be a joint managing conservator, what decision making rights they have over their child/ren, and what visitation schedule would be safe for the children. See Tex. Fam. Code 153.004 and 153.005.

The best way to handle a protective order is when one is first being requested. Someone might agree to a protective order “to make things easier” when the facts do not support it. This has disastrous effects on their divorce and/or custody case. If you have a protective order case contact an attorney in your area to get your legal options.

Can I change my last name as part of the Divorce?


Yes, in Texas, as part of the Final Decree of Divorce, you can go back to a maiden or other formerly used last name.

Parties to a divorce can request a name change to change their last name back to a prior used last name from before the marriage. This usually means a party going back to a maiden name. A Judge may not deny a name change back to a maiden name solely to keep the last names of the family the same. See Texas Family Code 45.105

Parties might keep their last name the same as the child(ren) to make enrollment and paperwork easier, or go back to a prior name, for a variety of personal reasons. It is the party’s choice if they want to go back to a prior name. A party many not forbid a party from changing their name, and vice versa, they may not insist that a former spouse change their name back to a prior name.

Williamson County Standing Order


Williamson County has recently adopted and approved a Standing Order. See below for a copy. This Order is similar to many other standing orders for other larger Texas Counties.

A Standing Order is issued from all the District and County Judges and applies to every Divorce and child Custody case when filed. Williamson County’s Standing Order does not apply to modification cases due to it’s immediate restriction on moving a child out of State, which may be in conflict with parties’ prior custody orders.

When parties are filing their Original Petitions for Divorce, Suit to Establish Paternity, or Suit Affecting Parent Child Relationship, these Standing Orders immediately go into effect and dictate the actions of the parties. The Orders are attached to the served papers and parties are deemed to have knowledge of them once their pleadings are filed and/or served in the case. Pro Se (self represented) parties should review these Standing Orders carefully and follow them throughout the case, unless the Court/Judge makes specific Orders otherwise.

Possible repercussions in violating these Standing Orders could include, after a hearing on the alleged violations, the Judge making Orders in the case to protect child(ren) and property from the violating party. This could have drastic consequences in your case.

Are tax implications considered in dividing property in a divorce?

former married couple sign a divorce certificate

When dividing assets in a divorce would any taxes associated with the property be considered?

In Texas, under Family Code 7.008, when dividing the estate of the parties in a divorce the court may consider whether a specific asset will be subject to taxation.  The court can also consider, if the asset is subject to taxation, when those taxes will be required to be paid.

The common examples are with retirement accounts or similar investments.  A ROTH-IRA is different than a traditional IRA in how withdrawals are treated for tax purposes.  Those differences impact the actual value of the account.  Other considerations would be prepayment of taxes, such as when an escrow account is included in Mortgage payments, or if large quarterly tax payments have or have not been made on a small business.

If accounts have been cashed out during the lead up to the divorce, and there will be tax consequences as a result, the court can consider those tax consequences when awarding assets and debts of the marriage.  The court may even require one party to assume the other’s liability or require reimbursement for taxes paid.

In addition to legal advice for the divorce process, it is also a good idea for individuals dividing such accounts to consult with a financial planner or similar tax professional to advise on how focusing on certain assets in a divorce would help them meet their strategic short-term as well as long-term goals.

Waiting period for divorces in Texas


What’s the Waiting Period for a divorce in Texas?

The waiting period for a divorce in Texas is 60 days from the date the Original Petition of Divorce was filed at the courthouse.  When the other party was served with the initial divorce papers does not effect this waiting period.  The 60 days is calculated from the date of the initial filing.  See Texas Family Code Sec. 6.702

Other states have long “separation periods” or some period of time when the parties must live apart from one another.  Texas has no such requirement.

There are exceptions to the 60 day waiting period for a divorce.  Both exceptions focus on whether there was family violence in the relationship.  If one of the parties has been convicted of a criminal offense dealing with Family Violence (or placed on deferred adjudication for it) then the 60 day waiting period may be waived.  This is up to the discretion of the Judge.  That request needs to be included in the court filings and made part of the conversation during a hearing.  Having a protective order issued on a party due to family violence is another exception to the 60 day waiting period.  This would be something more than the short term 30-90 day emergency protective orders.  This exception applies to the longer 1-2 year protective orders.

When timing your divorce, keep in mind these deadlines.  If you want to be divorced before the end of the year, for tax purposes, then filing the initial paperwork would have to be done in October in order for the 60 day waiting period to run before the end of the year.

Legal Aid and Volunteer Legal Services


There is help for those who cannot afford traditional legal services.  Beyond the other low-cost options many attorneys offer (flat fee, limited scope, etc.) there are more low-cost options.  Some parties cannot afford traditional attorney representation or a choice is made that funds would be better used somewhere else other than traditional attorney representation.

Texas Rio Grande Legal Aid, AKA “Legal Aid” is an organization to help those who cannot afford traditional attorney-client representation.  Their focus is on victims of family violence or in dire need of help due to unfortunate circumstances.  Legal Aid’s website had information on applying for assistance as well as general information.  They can do phone screenings as well if you call 1-888-988-9996.  The best time to call is in the morning starting at 8:30am.  There is a huge demand for their services so be patient if the line is busy or goes unanswered.  Call back or go online to start the screening process.

Many will not qualify for Legal Aid’s free assistance.  There are other options in the Central Texas area.  One option is Volunteer Legal Services (VLS).  They offer in-person clinics to help those dealing with a variety of issues, from family law, civil cases, and evictions.  They cannot help with criminal, immigration, or contested probate cases.  They do not take calls or answer questions at their offices.  You must sign up for a clinic and attend in person.  Here is a link to their website with information on the days and locations of the clinics in the Austin area.  Local volunteer attorneys are there at the clinics to consult with you for a limited period of time.  Have your case documents with you and be ready to take notes during the short time you have with the attorney.

The Travis County Law Library, located in downtown Austin, is another resource.  They have librarians who can point you in the right direction for various forms as well as help with research topics. This is a good second-step after consulting with attorneys or other legal experts to determine the issues of your case.

Can my boyfriend/girlfriend pickup my child from the other parent?


After parties separate, it is highly likely that they will date other people at some point in the future.  When that happens, then another person is pulled into the orbit of the parent’s custody arrangement.  This can be a emotional and contentious proposition, especially when children are involved.

In most Standard Visitation Orders, there are General Terms and Conditions that say who can be present when a child is picked up or dropped off.  This language usually says, “either parent may designate a competent adult to pickup and return the child, as applicable; a parent or a designated competent adult shall be present when the child is picked up or returned”  See Texas Family Code 153.316(6).

This means that if new boyfriend or new girlfriend, new husband or new wife,  is there for pickup or drop off that’s generally OK.  A new boyfriend or girlfriend will usually qualify as a “competent adult” unless they have an extensive criminal background for violent offenses, drug offenses, have a protective order or a history of protective orders, or are a registered sex offender.  Most low-level misdemeanors will not be enough to exclude new boyfriend or new girlfriend from handling pickups and drop offs.  Contact an attorney in your area to determine the specifics in your case and what rises to an worrying level for the Judges that may hear your case.  Yes, this also means new partners can handle the exchanges alone without the actual parent present.

A word of caution: it is best not to let new wife, girlfriend, husband, boyfriend handle communications on your behalf about the children.  Concerns about the children’s school or extracurriculars should be handled by the parents themselves.  Details about the visitation schedule and any modification requests should be handled by the parents themselves.  Allowing a new partner to handle these topics with the other parent is asking for trouble.  Judges prefer the parents to handle the communications about the children, not new partners.  If you are allowing your partner to handle these communications because you “just can’t have a reasonable conversation” with the other parent, then that’s going to be a mark against you in the future.  Finding a way to communicate for the good of the children is in everyone’s best interests.  There are many short-term counseling seminars, online communication tools, and other options to explore before you throw in the towel.  Try these options and you will be in a better place for your next court hearing or maybe avoid one altogether.  If the other parent is being truly unreasonable and demanding in all your attempts to have a reasonable discussion about the children then reach out to an attorney in your area about options.  There are change that can be made if you are experiencing truly poor behavior from the other parent.

Can I go to my child’s activity when it’s not my day for a visit?


A common question is whether a parent can to to their child’s sports game, school play, or classroom activity when it is not their day for a visit under their visitation schedule.  Parents should want to attend as many of these important milestones in their children’s lives as possible.  Judges understand this and encourage this involvement after parents split up.

Sometimes the other parent will overstep their authority and claim one parent and/or their extended family cannot see the child at public/school/sports activities when it’s not that parent’s scheduled visitation day.  Only in rare cases where there’s an active Protective Order, Restraining Order, or similar restriction on how physically close parties can be to one another will one parent be prevented from attending these important events in the child’s life.

Texas Family Code section 153.073 lists the rights of both parents AT ALL TIMES. This means the parent has these rights regardless of what day of the week or visitation schedule they have elsewhere in the Order.  These rights are usually in your divorce/custody/child support order near the beginning of the document.  Check your court paperwork and verify that you have a list similar to the one I quote below.  If so, then you have the right to attend any school related event, i.e., school sports, band performances, choir performances, plays, classroom parties, and awards ceremonies.  Further, any club sports team’s games are usually listed on the club’s website along with the game’s location.  Any member of the public can go to these games.

Disclaimer: You can attend the event but that does not mean you get to visit with the child for an extended period before/during/after the event. Respect the other parent’s time with the child and keep interactions supportive but short.

RIGHTS OF PARENT AT ALL TIMES. (a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:

(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;

(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

(3) of access to medical, dental, psychological, and educational records of the child;

(4) to consult with a physician, dentist, or psychologist of the child;

(5) to consult with school officials concerning the child’s welfare and educational status, including school activities;

(6) to attend school activities;

(7) to be designated on the child’s records as a person to be notified in case of an emergency;

(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and

(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

How soon can I get remarried after my divorce?

man holding woman's hand

In Texas, when someone asks, “How soon after my divorce can I get remarried?” or “Is there a waiting period for when I can remarry after my divorce?” I point out Texas Family Code 6.801.

“…neither party to a divorce may marry a third party before the 31st day after the date the divorce is decreed.  The former spouse may remarry each other at any time.”

Some clients have been separated so long that they meet, date, fall in love, and plan a wedding with a new partner before their old divorce is finalized.  Wedding plans get made and then have to be rescheduled to avoid this prohibition.  There are judicial remedies available for emergency purposes, but for the most part it is good advice to finish your old marriage before starting a new one.

Access to Intestate’s Financial Accounts

I receive calls from parties who, after a loved one has passed, have no idea what that balances are in their loved one’s financial accounts.  They do not know whether the estate would be solvent (able to pay its debts) or insolvent (unable to pay debts).  They do not know if there is a small balance or large and how that would affect cheaper probate alternatives.  Not knowing the balance of accounts can make a difference as to whether a case qualified foraSmall Estate Affidavit or needs an more typical Probate or Heirship proceeding.

There is a way to look into balances on a decedent’s accounts. Texas Estate Code 153.003 provides that an “interested person” (heir, spouse, creditor, claim holder) can request a probate court to order a financial institution to release the balance information on each account in the deceased party’s name with their financial institution.  The court can do this only if: (1) at least 90 days have passed since the date of death, (2) no probate petition has been filed (yet), AND (3) no one has already been appointed as a personal representative of the estate.

The exception to this is the bank does not have to provide information about a financial account that already has a beneficiary designation, payable on death (POD) account, a trust account, or an account that provides for a right of survivorship.  These types of accounts automatically transfer on death and become the property of the named successor, so you cannot invade that person’s right of privacy in their newly inherited accounts.  You can only see balance for the accounts left hanging after a death with no where to go except through the probate process.