Legal Overview

Divorce in Texas requires that you have been resident for at least six months. There are many “grounds” upon which a divorce can be obtained in Texas, however the most common form of divorce is a “no-fault” divorce. Read our detailed legal summary of Texas including grounds, residency, child custody, child support, temporary orders, alimony, agreements, property, visitation, and premarital agreements.

An answer needs to be filed within 20 days after service or the other side may get a default order.  A person can be defaulted if they fail to show up for a hearing that they have received notice of.

Divorce Process

Agreements

Almost anyone will tell you that divorcing parents and their children are better off to have a divorce settlement. A divorce settlement is one in which the parties resolve all of their differences between themselves and without the necessity of a court hearing. It is then necessary to ask the court to approve the terms of their agreement. Divorce settlements reduce the bitterness that may exist between the parties and benefit everyone. If a court enters an agreement it is considered final.

Temporary Orders

After the petition is filed it must be served on the other spouse unless that spouse waives service in a written, signed document. When served, a person has the right to answer the Petition and to file a Counterclaim for divorce. After a petition for divorce is filed, either party may request that the court make temporary orders that will control the family situation while the divorce is pending. The temporary orders might include such things as counseling, protection orders, holds on selling property, and prevention of debt. The court can order temporary conservatorship and visitation.

Residency Requirements

The divorce is initiated by filing a petition. The petition should be filed in the court in the county where one of the spouses has been a resident for 90 days. Also, at least one spouse should have lived in the State of Texas for at least six months. A divorce cannot be granted by the court until the petition has been on file with the court for at least 60 days.

Grounds for Divorce

A divorce in Texas may be granted upon any one of several grounds. The vast majority of divorces are granted on a no-fault basis, meaning that the marriage is beyond any “reasonable hope of reconciliation”. A divorce may also be granted for adultery, abandonment, cruelty, imprisonment, conviction of a felony, living apart, and confinement in a mental hospital.

Division of Property

In the divorce decree, the court must divide all the parties’ community property. The court cannot give the separate property of one spouse to the other spouse, except with the owner’s agreement. Therefore the court must decide whether each item owned is community or separate property. Any separate property is that owned before marriage and is not subject to division.

Unless otherwise agreed to in a written contract properly executed by the parties, community property is all property acquired during the marriage, except gifts and inheritances. Property acquired during the separation but before the divorce is final is community property. Unless proven otherwise, the court will presume that all property owned by the parties is community property. Joint management community debt is usually community property that both parties are obligated to repay. No agreement by the parties and no court order in a divorce proceeding can affect the right of creditors to attempt collection from either party. However, a court can order one party to pay particular debts.

Spousal Support

Alimony is periodic payments from one spouse for the support of the other spouse after divorce. Texas has court-ordered alimony referred to as “maintenance”. Alternatively, the parties may agree to alimony in a separation agreement and it is then called “contractual alimony.”

The court may only order “maintenance” under very limited circumstances when: (1) A spouse is convicted of or received “deferred adjudication” for a crime that also constitutes family violence, within two years of the filing of the suit, or while the suit for divorce is pending; or (2) The spouses have been married for at least ten years, and the spouse seeking maintenance: (a) is unable to be self supporting due to an incapacitating physical or mental disability; or (b) has custody of a child who requires substantial and continuous care, making it impractical and inappropriate for that spouse to work outside the home; or (c) clearly lacks the ability to earn a living which would meet that spouse’s minimum reasonable needs .

In the absence of a disability, maintenance is limited to a maximum of 3 years. A court may not enter a maintenance order that requires a monthly payment more than the lesser of $2,500, or 20% of the paying spouse’s average monthly gross income.

Child Custody

In Texas, “Conservatorship” is “Custody” of the children. With very few exceptions, divorcing couples can and should agree on the issues of custody and visitation. The agreement should ensure that the child or children maintain close and continuing contact with both parties after the divorce is final. If an agreement is reached, the child or children will be spared the unnecessary and destructive discord between the parents. When custody and visitation issues cannot be resolved by agreement, the court decides those issues. In deciding, the court looks at the best interests of the child.

The best interest of the child is determined by the court, but can include such factors as: Parental abilities; Emotional and physical danger to the child; Emotional and physical needs of the child, now and in the future; The desires of the child; Plans of the individuals seeking custody; Stability of the home of the individual seeking custody; Programs available to assist the individuals; Acts or omissions of the parent; Any excuse for acts or omissions of the parent.

Visitation is presumed to be appropriate as agreed between the parties, or, when they cannot agree, according to a standard possession order, the terms of which are set forth in the law.

In the event that the parties can not work something out between themselves, the court may order them to use the mediation services that are available to assist the parties in formulating appropriate custody arrangements. A recommendation on conservatorship will be made to the Court at the conclusion of their social study.

Child Support

The Texas family code contains guidelines for the computation of child support. They can be used to help determine how much a party will have to pay. The spouse paying child support may also be required to pay for the child’s health insurance. Child support orders continue until the child reaches age 18. If the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period.

All court orders dealing with children from a divorce are modifiable in the future if significant changes warrant a modified order. The court in Texas cannot order a parent to pay for college. The court will only apply guidelines to the first $7,500 of net income.  The court must find that the proven needs of the child exceed the max in order to order support above the guideline max.

Premarital Agreement

When parties chose to enter a prenuptial agreement often they do not question its validity when entering into it. Fortunately, in Texas, if the agreement is in writing and signed by both parties it is enforceable even without consideration. The agreement is not enforceable if the party proves that (1) the agreement was not voluntarily signed; (2) the agreement was unconscionable when signed and before signing, the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, did not voluntarily waive any right to the disclosure of this information, and did not have adequate knowledge of these obligations.