Texas Divorce

Amy Pennza
Texas Divorce

Texas divorce laws cover every issue that can come up when two people decide to end their marriage. Whether you have been thinking of divorce for a long time or you're just getting started, it's important to understand the various steps involved in seeing a divorce case through from start to finish. Before you can file for divorce in Texas however, at least one spouse must live in Texas for at least six months, and the filing county for at least 90 days.

Grounds

Texas law permits both no-fault and fault-based divorce. In a no-fault case, the couple states that the marriage is "insupportable." Although most people choose to pursue no-fault cases, Texas allows the following fault-based grounds:

  • Adultery
  • Abandonment
  • Three years in a mental health facility
  • Felony conviction and imprisonment for at least one year
  • Cruel and inhumane treatment
  • Living separately for at least three years

How To File

To get started, you must file the necessary paperwork with the court.

  • The petitioning spouse files the complaint, called the Original Petition for Divorce. This document is filed with the District Clerk in the appropriate county.
  • After filing the Original Petition for Divorce with the District Clerk, the filing spouse must serve it on the other party. The most common ways to serve the Original Petition include sheriff's service or a private process server. An alternative, frequently used in no-fault divorces, is to have the other spouse sign a waiver of service of process.

Once the initial divorce papers are filed, the District Clerk or the clerk's assistants manage the documents filed with the court.

Temporary Orders

The court may issue Temporary Orders to address immediate issues such as child custody and financial support before the divorce is finalized. Temporary Orders can specify who can live in the home, who has authority to write checks on the bank accounts, and who has custody of the children. Some courts require the parties to attend mediation before they schedule a hearing on motions for temporary orders.

Mediation and Trial

Mediation occurs when both spouses meet with a neutral third party to attempt a resolution of their case. The mediator's job is to help the parties settle the case without the expense and delay of a trial. Under Texas law, mediation is purely voluntary. Although it is not required, many parties try to resolve their differences through mediation rather than fight a lengthy court battle. If the parties can't agree, however, the case proceeds to trial. Most divorces in Texas are heard by judges, but Texas is one of only two states that permits couples to choose a jury trial in divorce cases.

Property Division

Divorce laws in Texas treat marital property as community property. Texas courts consider the following factors when deciding how to divide property:

  • Any fault or blame for the divorce
  • The parties' health
  • Each side's education
  • Each spouse's income
  • Both sides' future earning ability
  • Which party is raising the children
  • The nature of the property
  • Any separate property
  • Any inheritances
  • The tax consequences of dividing property a certain way
  • Any fraud on the part of a spouse
  • The parties' debts

Alimony

In Texas, alimony is called "spousal maintenance." Texas courts start out with the presumption that maintenance is unnecessary. A party who wishes to receive support must show the court that maintenance is fair and appropriate. Even when courts do award support, Texas law imposes strict time limits on duration. Most support orders are limited to five years. In cases where the parties were married between 20 and 30 years, support can last for seven years. For marriages greater than 30 years, Texas law permits support payments to extend to 10 years.

Courts consider the following factors when deciding whether spousal maintenance is appropriate:

  • Each party's ability to be self-supporting
  • The education and employability of each spouse
  • The length of the marriage
  • The parties' ages and work history
  • How child support obligations will affect a party's ability to pay spousal support
  • Whether either side depleted the marital assets
  • The spouses' financial contributions to the marriage
  • How much property each side brought to the marriage
  • Homemaker services
  • Fault of blame for the divorce
  • History of domestic violence

Child Custody and Support

If you have minor children, you and your spouse must decide how to split time with your kids and which parent will pay child support.

Child Custody

Courts consider the following factors to determine how custody should be awarded:

  • The child's wishes
  • The child's emotional and physical needs
  • Whether a parent poses an emotional or physical danger to the child
  • The parties' parenting abilities
  • The availability of programs designed to help the parents fulfill the child's best interests
  • The parents' plans for the child
  • The home environment of each parent
  • The nature of the parent-child relationship
  • Any legitimate reason why the parent acted or failed to act a certain way

Child Support

Texas child support laws use a formula to figure out how much child support a non-custodial parent must pay. This formula, called the Percentage of Income Formula, applies a percentage to the income of the non-custodial parent based on the number of children in need of support in order to calculate child support payments.. Texas courts consult the following factors to determine the amount of child support:

  • The child's age and financial needs
  • The parents' finances, income, and assets
  • Child care costs
  • Other child support costs
  • Alimony payments
  • Health care costs
  • Education costs
  • Work benefits
  • The parents' debts
  • Wage garnishments
  • Travel costs related to exercising visitation
  • Whether a parent's assets earn income or incur costs
  • Car and house payments

Getting Started

When you're ready to file, the Texas Supreme Court provides residents with free forms and helpful instructions. Although there are many useful resources available for people who wish to proceed on their own, most cases are too complex for do-it-yourself divorce. Before you file, talk to an attorney to make sure you're not taking on more than you can handle.

Texas Divorce