Texas Divorce - An Overview

Contemplating divorce is always difficult. Involving a knowledgeable Texas family law attorney as soon as possible in the divorce process is one of the best ways to preserve your own long-term financial and emotional health.

Grounds for Divorce

A divorce is a method of terminating a marriage contract between two individuals. In Texas, divorce can either be "no fault" or fault-based. No fault divorce is a marital termination proceeding where the divorce is granted without either party being required to show fault (show that the other party caused the breakdown of the marriage). Under no fault rules, either party may obtain a divorce, even if the other spouse does not consent to the divorce. Married people can get a no fault divorce if their marriage has become "insupportable" or if the couple has been living apart for three years.

Texas divorces can also be fault-based, requiring one person to give a legal reason in order to get a divorce. In Texas, divorces can be granted on the grounds of (1) adultery (2) abandonment, (3) incurable insanity, (4) imprisonment for a felony conviction, or (5) cruel and inhuman treatment. Typically, a fault-based divorce is pursued if the couple cannot reach a satisfactory settlement about property division, child support, or custody, and one party wants the court to consider the conduct of the other party when deciding the issue. Our divorce law firm can help you determine if you should pursue a fault based or no fault based divorce.

Contested Divorce

Before a divorce may be granted, there are usually five basic issues that must be resolved. They are:

1. Alimony or spousal support
2. Property division

   and, if there are children

3. Custody
4. Visitation, and
5. Child support.

If a divorcing couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and avoid adversarial divorce litigation.

If there is disagreement, however, the divorce is contested, which means it may end up in trial before a judge or jury, or in another form of dispute resolution. It is important to consult with an attorney before deciding which method is right for your situation.

Divorce litigation involves a series of document exchanges and court appearances. In some instances there are questions or situations that need to be temporarily resolved before the final divorce agreement is reached or ordered by the court. Temporary orders on support, custody or other matters generally remain in effect until the final decision is made at the end of the divorce process. Ultimately, there will be a trial if a settlement hasn't been reached. Witnesses may include friends, financial experts, psychologists, as well as other types of evidence including financial records. The judge's final decision provides the court's rulings on all the issues raised by the parties.

Alimony, Spousal Support & Maintenance

Alimony, also known in Texas as maintenance, is financial support paid by one spouse to another. In Texas, a court awards maintenance in certain limited circumstances. If the court finds maintenance should be awarded, the appropriate amount will be determined by the court based on the factors set forth in the Texas Family Code.

Division of Property

Texas uses the "community property" system to distribute marital assets between divorcing spouses. Property acquired by either spouse during the marriage is community property to be divided upon divorce. Under Texas law, the division of property does not have to be equal. The courts are only required to divide the community property between the parties "in a manner that the court claims just and right, having due regard for the rights of each party and any children of the marriage." If either spouse acquired property outside of the state, a court can also divide that property using community property rules if they divorce in Texas. Individual spouses may also own separate property that is treated differently under the legal rules. Because classification of property and its division can become one of the most contentious issues in a divorce, you need the advice and assistance of a family law attorney familiar with Texas family laws and procedures.

Frequently Asked Questions about Texas Divorce

Q: What is a legal divorce?

A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce will give each party the legal right to marry someone else, to divide and share marital assets and debts, and to determine matters related to the care and custody of their children. In Texas, divorces are either fault-based or no fault.

Q: What is a "no fault" divorce?

A: Traditionally, divorce was granted only in cases of marital misconduct such as adultery or physical abuse. In these cases, the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In Texas, married couples can get no fault divorces if the marriage has become "insupportable" because conflict has destroyed the legitimate ends of the relationship. No fault divorces can also be granted if a couple has been living separately without cohabitation for three years.

Q: What are the requirements for filing a petition for divorce?

A: In Texas, one of the parties must have resided in the state for at least six months an in the county where the divorce is filed for 90 days prior to commencing the action. Texas has a 60-day waiting period before a divorce will be granted.

Q: What is a legal separation?

A: A legal separation deals with property distribution and child support and custody issues without ending the marriage. While most states have some form of legal separation, however, Texas does not. In Texas, temporary orders concerning marital issues can be granted while a divorce is pending, but there is no provision for an indefinite legal separation.

Q: What is an agreed divorce?

A: In Texas, if the couple agrees on the terms of the divorce, they can document the terms of that agreement and take it to a judge. The judge will ask the parties questions about the agreement, and if the terms are fair, the judge will grant the divorce according to the terms of the agreement.

Q: How is property divided in a divorce?

A: Texas is a community property state, which means that all the property owned by a married couple is categorized as either community property or separate property. Community property is owned equally by the spouses and divided equally at divorce. Separate property is kept by the spouse who owns it. Most property not acquired before the marriage or through specific means during the marriage will be considered community property, even if it was acquired in another state.

Q: What is the difference between maintenance and alimony?

A: Each word refers to the same concept - one spouse providing funds to the other. The legal term in Texas is "maintenance," which are regular, court-awarded payments from the future income of one ex-spouse to support the other. Such payments are not often awarded, and when they are, they typically end after three years. The court will consider a range of legal factors when determining maintenance.

Q: Do I need to hire an attorney?

A: It is not mandatory that you hire an attorney and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues, it is beneficial to employ the services of a professional who is knowledgeable with Texas law and experienced in the field.

Conclusion

Reaching the decision to end a marriage is enormously difficult. Once you do make the decision it is in your best interest to approach the divorce process from a rational, businesslike perspective, which is extraordinarily difficult given the emotional issues with which you must also cope. Working with a Texas divorce attorney who is experienced in family law will ease your stress and help you get through the process to begin your new life.