Requirements for Divorce in the State of Texas
1. You Must Be Married
Marriage in the State of Texas takes two forms; formal and common law marriage. A formal marriage consists of licensing from the County Clerk's Office and having a service performed by a person authorized to perform marriages in the State of Texas. Informal marriages, or "common law marriages" require either, A) a Declaration of Marriage which has been signed by the parties and filed with the County or State; or, B) the parties agreed to be married and after the agreement they resided together as husband and wife and the parties represented to others that they were married.
2. Residency Requirements
In the State of Texas, you or your spouse must have resided in the State of Texas for at least six (6) months and within the county you are filing in for at least ninety (90) days.
Back to top
Frequently Asked Questions Regarding Divorce in the State of Texas
1. Is Texas a "no-fault" or "fault" State?
In Texas, one can receive a no-fault divorce based on allegations that the marriage has been insupportable due to a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.
You can also receive a divorce based on "fault" grounds which include, but are not limited to adultery, abandonment, cruelty, conviction of felony, living apart for at least (3) years, and confinement in a mental hospital. In Texas, sometimes fault grounds are alleged so that the complaining spouse may receive a greater portion of the community assets.
2. How does the divorce process work?
The most common scenario is when one party retains a lawyer to file for divorce against the other party. The attorney prepares an Original Petition for Divorce and files the divorce in the District Court in the County in which the husband or the wife reside. There is a filing fee charged by the County. The spouse (Respondent) is then served with the divorce papers by a private process server or Constable. The Respondent then may file an Answer within a specified period of time and/or hire an attorney to represent his/her interests. At times, the Original Petition for Divorce is served with a Temporary Restraining Order (TRO). This order is an immediate order from the Judge to prohibit the other spouse from certain activities. Typically this may include hiding, secreting or liquidating assets or threatening to commit family violence. In a divorce with a TRO, a temporary hearing is usually set within a week or two of the filing of the divorce and at that hearing temporary issues such as child support, custody, visitation and use of property will be heard. Temporary Orders are then drafted and entered with the Court.
3.What is Community Property?
Community Property is property that either spouse has acquired during the marriage excepting items received via inheritance or gift, or that is property owned by the spouse before marriage or certain recoveries from personal injury cases.
4. Separate Property
Separate property is property that either spouse owned prior to marriage, received as an inheritance or gift or recovered from some personal injury cases.
5. Is Texas a "Community Property" State
Yes, Texas is a community property state, however, this does not necessarily mean that all community property will be divided on a 50/50 basis. There are several factors that go into a Court's decision of how to divide property. Some of the more common reasons for not dividing the property on a 50/50 basis is:
- fault in the break-up of the marriage;
- gross disparity of earning power between the spouses;
- physical abuse;
- amount of separate property a spouse has;
- length of the marriage;
- needs of a party;
- health of the spouses; and
- employability of the spouses
6. Is Texas an "Alimony" State
Yes, Texas does have provisions for awarding temporary or permanent alimony or "spousal support" to a qualifying spouse. Often, while a divorce is pending, temporary spousal support will be awarded to a spouse who earns significantly less money then the paying spouse.
Texas is much more limited in its awarding of post-divorce support. The requirement for post-divorce spousal support is that the marriage must have lasted ten (10) years and the requesting spouse does not have the ability to earn enough income to support his or her minimum reasonable needs. In addition, the spouse may receive spousal support if there is a finding of domestic violence in the two years prior to the date of filing for divorce . There are several other requirements for a spouse to receive post divorce spousal support.
In Texas, spousal support is limited to 20% of the individual's gross income for a period up to three (3) years unless extraordinary circumstances exist.
7. What is "Joint Custody" or "Joint Managing Conservatorship"?
In Texas, parents are typically given certain rights and duties regarding their children in a divorce case. The parents will usually be designated as a "Managing Conservator", "Joint Managing Conservator" or a "Possessory Conservator."In most cases, the parents are designated as "Joint Managing Conservators." This designation sets forth the various rights and duties that a parent will have with the child, including but not limited to, where the child will live, who receives child support, who makes medical and educational decisions for the child, etc. Often times, these rights and duties are jointly held. Joint Managing Conservatorship does not have anything to do with the amount of time the parent spends with the child.
8. What is "Standard Visitation"?
Standard visitation is a guideline provided by the State of Texas. The State feels it is appropriate for most parents. This typically has one parent having possession of the child(ren) on the 1st, 3rd and 5th weekends of the month beginning Friday at 6:00 pm or when school is released and ending on Sunday at 6:00 pm or when school resumes on Monday and every Thursday during the school year from the time school is dismissed until Friday when school resumes, or from 6:00 pm to 8:00 pm on Thursdays. It also includes various holiday possession periods and up to 30 days in the summer. The other parent would have possession of the child at all other times.
9. What are the Guidelines for Payment of Child Support?
In Texas, child support is most commonly determined via a specified formula which inputs the number of children and the child support obligor's net resources. For one child, the percentage is 20% of obligor's net resources, for two children, 25%, for three children 30%, for four children 35%, and 40% for five children. The child support could be reduced if the obligor has other children he or she is required to support.
Child support can be either increased or decreased after completion of a divorce if there has been a significant change in the circumstances of the parties or the income of the obligor.
10. Can Child Support be Held from the Obligor's Paycheck?
Yes, state law authorizes a Judge to issue an Employer's Order to Withhold for Child Support which requires an employer to withhold the amount of child support due and owing.
11. Who is responsible for providing medical insurance for the child(ren)?
The Court usually requires the child support obligor to also provide health insurance for the children of the marriage. The Court usually orders the parties to split any uninsured heath expenses including deductibles, co-payments and prescription medication.
12. Is there any way that I can keep my spouse from moving out of the city or state with my children?
Yes, most of the time. In Texas, the Courts abide by a principle that parents should have frequent and continuing contact with their children. Many Courts routinely require that the domicile of the children be restricted to a particular county or contiguous county to the county of residence where the divorce took place. Under extraordinary circumstances, a spouse may be able to move the child(ren) out of the county when it is in the best interest of the child(ren) to do so.
13. What is "Mediation"?
In Texas, many divorces are settled though the Mediation process. Mediation is a settlement process whereby the parties, and typically their attorneys, meet with an impartial third person who assists the parties in reaching a settlement. The mediation process can last from a few hours to several days depending on the parties' willingness to continue to negotiate. A mediator does not render a decision on the issues in dispute. He or she encourages communication between the parties so they can resolve the issues. Mediation is typically a one day process and about 80% of mediations are successful.
14.What if my spouse and I are able to reach an agreement on all the issues surrounding the divorce either before or after filing for divorce?
If a settlement is reached before filing for divorce, it will probably still be necessary for one of the spouses to retain an attorney to prepare the appropriate paperwork reflecting the agreement. Obviously, these type of settlement agreements in divorces are less expensive then non-agreed divorces. There still is a requirement to prepare various paperwork, including deeds to transfer property, as well as the Final Decree of Divorce which will reflect the agreement of the parties.
Back to top
Post Divorce Issues
1. What if my ex-spouse is not paying the ordered child support?
The party who receives child support may file a Motion for Enforcement of Child Support with the Court alleging non-payment of child support. In the State of Texas, if the party is successful in proving that the obligor did not timely pay the child support, and was able to pay the child support, the Court has the ability to hold the obligor in contempt of court and jail that person for up to 180 days in addition to a $500.00 fine. Violation of child support orders are taken very seriously in all courts. The Court may also award attorney's fees to the party who successfully proves the violation.
2. What if my spouse refuses to allow me to see my children during my designated visitation periods?
The person who is refused visitation may file a Motion for Enforcement of the visitation order with the Court. If he or she is able to prove by a preponderance of the evidence that the other party violated the visitation order by refusing to make the child available for scheduled visitation, then the Court may hold the non-complying party in Contempt of Court and jail that person for up to 180 days and/or a $500.00 fine. Violation of visitation orders are taken very seriously in all courts. The Court may also award attorney's fees to the party who successfully proves the violation.
Back to top
