Understanding Divorce In Texas
Considering a divorce in Texas? The divorce process can be complex and emotional, so it is important to be well-prepared before the process begins. Understanding divorce laws and the process is the first step toward this preparation.
This blog post will provide an overview of the divorce process in Texas, including the grounds for divorce, the steps involved, and matters related to child custody and property division.
No-fault divorce
Texas is one of the states where a couple does not have to allege or prove that one spouse is at fault in order for the divorce to be granted. Known as a “no-fault divorce,’ this system is based on the premise that the marriage has irretrievably broken down and that there is no hope of reconciling.
In this case, the spouse who files for divorce does not need to present any evidence of the other party’s ‘wrongdoing.’
However, many times a divorce in Texas is filed because of adultery, cruelty, incarceration, or abandonment. Courts in Texas will consider the ‘wrongdoing’ of the other party when determining matters related to property division.
These ‘faults’ that are grounds for divorce range from adultery, abandonment, and cruelty, to incarceration and separation.
A key aspect of understanding divorce in Texas is to know what these legal grounds are for divorce in Texas.
Legal grounds for divorce
In Texas, there are seven grounds for divorce, which are basically the reasons why a divorce can be granted.
- Insupportability: Of these seven grounds, insupportability is the most common. To get a divorce on the grounds of insupportability, the petitioner must show that the marriage is no longer supportable due to discord or conflict of personalities. It should also be shown that the discord is to the extent that it prevents any reasonable expectation of reconciliation.
- Cruel and inhuman treatment – If one spouse has treated the other spouse in a cruel and inhuman way, it is one of the grounds for divorce.
- Adultery – One spouse had an affair with another person.
- Abandonment – If one spouse has left the other spouse without any intention of returning, the one abandoned can file for divorce.
- Confinement in prison – If one spouse has been convicted of a felony or confined in prison for at least two years, the other can file for divorce.
- Separation or living apart -Spouses who have been living apart for at least three years “without cohabitation” can file for divorce. While this is a ground for divorce, Texas does not have a specific separation pre-requisite to file for divorce.
- Confinement due to mental illness – Another ground for divorce is when one spouse has been confined in a private or state mental hospital for a minimum duration of three years. The severity of mental illness also plays a role. To file for divorce, it has to be established that the mental illness is so severe that adjustment is not likely.
Most importantly, the person filing for divorce on any of these grounds must prove them. For instance, if one spouse alleges cruelty or inhuman treatment, they have to prove that cruelty occurred.
How long should you reside in Texas to be able to file for divorce?
In order to file for divorce in Texas, you must first meet the state’s residency requirements. You or your spouse must have lived in Texas for at least six months before filing for divorce.
Additionally, you must have lived in the county where you plan to file for divorce for at least 90 days. Once you have met these residency requirements, you can file for divorce in Texas.
Property division
In Texas, marital property is generally split evenly between divorcing spouses as the court assumes any earnings and property acquired during the marriage as community property.
According to Texas law, community property is to be distributed in a “just and right” manner. This means assets have to be distributed based on many factors such as:
- the earning power of each spouse
- custody of children
- each spouse’s education and health issues if any
Generally, if the court confirms that the marital assets are community property, the assets will be split equally between the spouses.
If an asset was acquired before the marriage, the court considers this as separate property that belongs to the individual spouse. Property can also be designated as separate property if it was inherited or received as a gift during the marriage.
However, there are some circumstances where this may not be the case. For instance, the court may award a greater share of the marital property to the less-at-fault spouse or to the one who earns a significantly lower income.
The court may also award a larger share of the property to one spouse if it finds that an equal split would be unfair. For example, if one spouse has primary custody of the children, the court may award a larger share of the property to that spouse.
In addition to property division understanding divorce in Texas is also about knowing how debts are divided.
Division of debts
Any debts the couple acquires during the marriage also belong equally to both parties. In some cases, one spouse may be entirely responsible for creating a debt that is only in their name. This type of debt can be held separate and the spouse responsible is liable to repay the debt. For instance, if one spouse takes a credit card and uses it for their own benefit, they are responsible to pay up the credit card debts.
There are also instances where one spouse can agree to handle a larger proportion of debt in return for other concessions (obtaining child custody or retaining ownership of a home).
Spousal Support
In Texas, the issue of spousal maintenance (sometimes called “alimony”) can be a hotly contested issue in a divorce. The Texas Family Code provides some guidance on when spousal maintenance may be awarded. However, it is ultimately up to the court to decide whether or not to award maintenance and, if so, how much to award.
Many factors are considered by the court when awarding spousal maintenance including:
- The earning capacity of each spouse
- Employment history
- The standard of living of both parties
- Age of both spouses
- Health condition of both spouses
- Existing assets and debts
- If one party spent community funds inappropriately
- Child custody arrangements
- Whether one spouse sacrificed their career to help the other to advance in their career
- Domestic violence
Generally speaking, spousal maintenance is intended to help a spouse who was financially dependent on the other spouse during the marriage.
Unlike alimony which is intended to preserve the standard of living of one spouse, spousal support is temporary in nature. Maintenance is not meant to be a punishment for a spouse who earns more money than the other spouse. Instead, it is meant to help the financially dependent spouse get back on his or her feet and become self-sufficient.
Spousal support is likely to be granted in these specific cases:
- When one spouse is convicted of domestic violence
- The couple has been married for more than ten years and the party requesting support does not have the ability to earn sufficient income
- The one requesting support has a debilitating disability or is caring for a child with a debilitating disability
Child custody and support
In Texas, as in all states, child custody is decided based on the best interests of the child. This means that the court will consider many factors when making a custody determination, including the child’s age, health, and relationship with each parent. The court will also consider the wishes of the child if the child is old enough to express a preference.
In most cases, joint custody is preferable to sole custody, as it allows the child to have a relationship with both parents. However, there are some circumstances in which sole custody may be the best option. If one parent is abusive or neglectful, for example, the other parent may be granted sole custody.
When it comes to child support, payments are calculated as a percentage of the paying parent’s income. Other factors such as both parents’ wages, investments, benefits, and parenting time that each parent spends are also taken into account. These are the percentages of total resources based on the number of children the couple has:
- One child – 20 percent
- Two children: 25 percent
- Three children: 30 percent
- Four children: 35 percent
- Five children: 40 percent
The divorce process in Texas
If you are considering a divorce in Texas, an important part of understanding divorce is to know the steps involved in the process. This will help you to be better prepared for what to expect and to make sure that you are taking all the necessary steps.
The first step in the Texas divorce process is to file a petition for divorce. This is a legal document that is filed with the court and must be served on the other spouse. The petition must state the grounds for divorce, which can include fault or no-fault grounds. This can be done with the help of an attorney or on your own. Once the petition is filed, the other spouse will have 20 days to respond.
If the other spouse does not respond, the court will grant a default divorce. This means that the divorce will be granted without the other spouse having to appear in court.
If the other spouse responds, the next step is to attend a court hearing. This hearing is held to determine whether the divorce will be granted.
If the divorce is granted, the next step is to attend a mediation session. This session is held to help the divorcing couple come to an agreement on the terms of the divorce. Sometimes a second mediation may also be set up to discuss the temporary orders issued in the first mediation. This session also is intended to come to an agreement on long-term issues related to property division, child custody, and visitation rights.
The parties can also discuss matters related to retirement income and marital home.
Once the terms of the divorce are agreed upon, a divorce decree is signed by the judge. The divorce decree becomes final after 30 days. The final divorce decree includes all the orders and instructions related to the property division, a visitation schedule, issues related to the marital home, retirement benefits, child custody, and other matters.
Contested versus uncontested divorce
In Texas, there are two types of divorce: contested and uncontested. An uncontested divorce is one in which the parties have already agreed on all terms of the divorce.
A contested divorce is one in which the parties cannot agree on one or more terms of the divorce. These terms can include child custody, child support, or division of property. If there is no agreement on all terms in mediation, the case proceeds to a contested trial.
The court considers the testimony and evidence submitted by both parties during the trial before issuing the final orders.
A contested divorce can be much more complicated, time-consuming, and expensive than an uncontested divorce. If you and your spouse can agree on all terms of the divorce, an uncontested divorce may be the best option for you.
How long does the divorce process take in Texas?
The process of getting a divorce in Texas can take anywhere from a few weeks to a few months or sometimes several years. Generally, this depends on the complexity of the case and the ability of the parties to reach an agreement.
If the parties are able to reach an agreement on all issues, the divorce can be finalized relatively quickly. However, if there are contested issues that need to be litigated, the process can take much longer.
In some cases, the divorce process may be put on hold if one party decides to file an appeal. This can further delay the process and add additional costs.
Consult a Texas divorce lawyer
Whether you have filed for divorce or considering it, it is important to consult an experienced Texas divorce lawyer.
At The Vendt Law Firm, P.L.L.C, we have skilled and empathetic divorce lawyers who can provide you with legal advice and representation throughout the divorce process. In addition to helping you in understanding divorce laws and processes in Texas, we will help you navigate the court system.
You can rely on us to negotiate with your spouse or their lawyer and represent you in court, if necessary.
