Texas Divorce Law

Divorce and Legal Separation in Texas


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Divorce and Legal Separation in Texas

Texas Divorce Basics

Residency Requirement:

To file for divorce in Texas, either spouse must have been a resident of the state for at least six months prior to filing, and must have resided in the county where the Petition is filed for the prior 90 days.

For the court to exercise personal jurisdiction over a non-resident Respondent the couple’s last marital residence must have been in Texas, and the suit must be filed before the second anniversary of the date on which marital residence ended.

If one spouse has resided in Texas for the past six months and the other spouse lives in a different state or country, the spouse residing outside of Texas is permitted to file for divorce in the county in which the other spouse lives.

Military Personnel:

Texas residents serving in the armed forces and stationed outside of Texas or the U.S. may still be considered a resident of Texas. Military personnel, who have not been previous residents of Texas, but have been stationed at one or more military installations in Texas for at least the past six months, and at a military installation in a county of Texas for the prior 90 days, are considered to be Texas residents and residents of that county for the purposes of filing for divorce.

Pregnancy:

If one party is married, it is best to wait until the baby is born to seek a divorce. Most Texas courts will not finalize a divorce if the wife is pregnant, even if the baby is not the husband’s. The court will typically wait until after the birth of the baby so that orders regarding the child can be included in the final decree.

Filing:

The Petition for Divorce may be filed with the District Court of the county where either party lives. The Petitioner must give legal notice to the Respondent, other spouse.

If the Respondent does not file an Answer within 21 days from being officially served, the case is default and it may be possible to finish the divorce process without the Respondent.

There is usually a 60-day waiting period from the date the Petition is filed before a judge will grant a final divorce decree. The waiting period is not required if the court finds that the Respondent has been convicted of domestic violence offense against the Petitioner or a member of the Petitioner’s household, or if the Petitioner has an active protection order or an active magistrate’s order for emergency protection against the Respondent due to domestic violence committed during the marriage.

Neither party to a divorce may marry again, except each other, before the 31st day after the divorce is decreed, unless good cause is shown to the court.

Collaborative Divorce:

Upon written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.

Collaborative law is a procedure where the parties and their attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention, except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law.

If the collaborative law procedure fails to result in settlement of the dissolution dispute, the parties’ counsel must withdraw and may not represent the parties for divorce court proceedings.

Spouse’s Name:

Upon the specific request of a party to change his/her name to the one used prior to the marriage, the court may change the name of the party in a decree of Divorce or Annulment, unless the court states a reason for denying the name change in the decree.
The court may not deny a change of name simply to keep the last name of family members the same.


Legal Grounds for Divorce

There are seven statutory grounds for divorce in Texas, most of which require a finding of fault on the part of one of the spouses. However, one grounds, insupportability, is considered no-fault and is used most often.

A divorce may be granted for any of the following grounds.
    1. If the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation;

    2. Cruelty by one spouse towards the other of a nature that renders living together unsupportable;

    3. Adultery;

    4. The commitment of a felony by one spouse, who has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state, and who has not been pardoned (This does not apply if the spouse was convicted on the testimony of the other spouse);

    5. Abandonment for at least one year;

    6. If the couple have lived apart without cohabitation for at least three years; and

    7. If, at the time the suit is filed, one of the spouses has been confined in a state mental hospital or private mental hospital in Texas or any other state for at least three years and it appears that the mental disorder is of such a degree and nature that adjustment is unlikely, or if adjustment occurs, a relapse is probable.

Annulment and Declaring a Marriage Void

In Texas, there are void marriages and voidable marriages. A voidable marriage is a marriage that should not have occurred, typically due to some sort of trick or deception at the time of the marriage. Parties to a voidable marriage may seek an annulment, declaring the marriage was not valid.

A void marriage, simple could never have been valid and cannot exist and so may be legally declared void by a court.

Annulment:

To file for annulment, the couple must have married in Texas or one of the parties lives in the state.

A court may grant an annulment when one of the parties is 16 or older, but under the age of 18 and entered into the marriage without parental consent or a court order. A petition for annulment for this reason may be filed by any to the following parties.
  • A next friend, for the benefit of the underage party (this party must file within 90 days after the date of the marriage, or the action will be barred);
  • A parent; or
  • A judicially designated managing conservator or guardian of the underage party, whether that be an individual, authorized agency or court.
The judge may use its discretion when granting an annulment for this reason, while considering the pertinent facts concerning the welfare of the parties to the marriage, including whether the wife is pregnant. Once the formerly underage party reaches the age of 18 years, a suit for annulment may no longer be filed.

Other grounds for annulment include the following:
  • At the time of the marriage, the petitioner was under the influence of alcohol or narcotics and therefore, did not have the capacity to consent to marriage;
  • Either party, for physical or mental reasons, was permanently impotent at the time of the marriage and the petitioner did not know of the impotency;
  • The other party used fraud, duress or force to induce the petitioner to enter into the marriage;
  • The petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect, at the time of marriage;
  • One party concealed a divorce, that occurred less than 30 days before the marriage, from the Petitioner, and the annulment suit is filed less than one year after the date of the marriage; or
  • If the parties married less than 72 hours after the marriage license was granted and the annulment suit is filed less than 30 days after the date of the marriage.
For any of these grounds to be valid, the petitioner must not have voluntarily cohabitated with the other spouse after learning of the issue at hand or after the petitioner is no longer under the influence of the issue. An annulment may not be granted after the death of either party to the marriage.
 
Declaring a Marriage Void:

To sue to have a marriage declared void, the alleged marriage must have been entered into in Texas or one of the parties lives in the state.

The following conditions render a marriage void.
  • If one party to the marriage is related to the other party by the following relationships: an ancestor or descendent by blood or adoption, as a brother or sister, as an aunt or uncle, or as a niece or nephew (all these relationships refer to whole, half, or by adoption);
  • Bigamy;
  • Both parties are the same sex;
  • Either party is younger than 16 years of age, unless a court order has been obtained; and
  • One party is a current or former stepchild or stepparent of the other party.
A marriage that is void due to bigamy may become valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.

Neither same-sex marriages, nor civil unions are valid or recognized in Texas.

Property Division

Texas is a community property state. Statute allows the court to divide marital property in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Property acquired by either spouse outside of Texas shall be deemed community property if the property would have been considered community property if it had been acquired in Texas.

Property that was acquired by a spouse while living in another state that would have been the spouse’s separate property if he/she were living in Texas; and property acquired by a spouse in exchange for real or personal property that would have been the spouse’s separate property if he/she were living in Texas is considered separate property of the spouse and shall be awarded to him/her.

In a decree of divorce or annulment, in addition to all other community property, the court shall determine the rights of both spouses in the disposition of the following property.
  • Pensions, retirement plans, annuities, IRA’s, employee stock option plans, stock options, or other forms of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant;
  • Insurance policies; and
  • Claims for reimbursement.
The court may consider whether a specific asset will be subject to taxation and if so, when the tax will be required to be paid when ordering the division of the marital estate.

Maintenance

In Texas, maintenance refers to an award of periodic payments from the future income of one spouse for the support of the other spouse, in a suit for Dissolution of Marriage. The oblige is the person entitled to receive the maintenance payments, and the obligor is the person required to make the maintenance payments.

The court must have personal jurisdiction over both parties to order maintenance.

For an award of maintenance, one of the following circumstances must be true.
  • The obligor was convicted of a criminal offense that also constitutes an act of family violence and the offense occurred within two years of the date the suit for Dissolution was filed or while the suit is pending; or
  • The couple has been married ten years of longer; the obligee lacks sufficient property to provide for his/her minimum reasonable needs and is unable to support him/herself through employment due to physical or mental disability; or is the custodian of a child of the marriage of any age, who requires substantial care and personal supervision due to a physical or mental disability; or she/her clearly lacks earning ability in the labor market to provide for his/her minimum reasonable needs.
When a court determines that a spouse is eligible to receive maintenance, it then determines the nature, amount, duration and manner by reviewing the following criteria.
  • The financial resources of the obligee, including the community and separate property and debts apportioned to him/her in the dissolution proceeding, and his/her ability to meet his/her needs independently;
  • The education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the obligee to find appropriate employment, the availability of that education and training, and the feasibility of that education or training;
  • The duration of the marriage;
  • The age, employment history, earning capacity, and physical and emotional condition of the obligee;
  • The ability of the obligor to meet his/her personal needs and to provide child support payments, when applicable, while meeting the personal needs of the obigee;
  • Acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
  • The comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
  • The contribution by one spouse to the education, training, or increased earning power of the other spouse;
  • The property brought to the marriage by either spouse;
  • The contribution of a spouse as a homemaker;
  • Marital misconduct of the obligee; and
  • The efforts of the obligee to pursue available employment counseling.
Unless the obligee is physically or mentally incapacitated or is the custodian of a child of the marriage who is physically or mentally disabled, in order to be awarded maintenance, he/she must exercise diligence in seeking suitable employment or developing the necessary skills to become self-supporting while separated and the dissolution case is pending.

Length of Maintenance Order:

If the obligee is unable to support him/herself due to physical or mental incapacity, or because he/she is the custodian of a child of the marriage who is physically or mentally disabled, the court may order maintenance for as long as the disability continues.

In this instance, the court may order periodic review of its order to determine whether the disability continues to render the obligee unable to support him/herself through appropriate employment.

If there is no physical or mental incapacitation affecting employability, a court may not order maintenance for longer than three years after the date of the order; and shall limit the duration of the order to the shortest reasonable time period that allows the obligee to meet his/her minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill.

Amount of Maintenance Payments:

A court may not order the obligor to make monthly payments of more than $2,500 or 20% of his/her average monthly gross income, whichever amount is smaller. The payment amounts should be set at no more than sufficient to provide for the minimum reasonable needs of the obligee.

Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.

Maintenance payments end at the death of either party or if/when the obligee remarries. If the oblige cohabits with another person in a permanent place of abode on a continuing, conjugal basis, a hearing may be requested to terminate the maintenance order.

    Child Custody and Support

    Custody:

    In Texas, custody is referred to as conservatorship. Joint legal custody is referred to as Joint Managing Conservatorship and means that both parents share in the major decision making rights, privileges, duties and powers held by parents.

    If the court doesn’t choose Joint Managing Conservatorship, instead it will appoint one spouse as the Sole Managing Conservator of the child(ren); this is the parent who is awarded custody. And the other party is the Possessory Conservator of the child(ren); which means the parent with visitation.

    The best interest of the child is the primary consideration in determining custody. It is Texas public policy to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; provide children with safe, stable and nonviolent environments; and encourage parents to share in the rights and duties of raising their children after parents have separated or divorced.

    If the parents cannot come to an agreement regarding custody and don’t file a written parenting plan with the court, the Judge (or jury, if requested) may award joint legal custody based upon the following factors.
    • Whether the physical, psychological, or emotional needs and development of the child will benefit from joint custody;
    • The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
    • Whether each parent can encourage and accept a positive relationship between the child and the other parent;
    • Whether both parents participated in child rearing before the filing of the suit;
    • The geographical proximity of the parents’ residences;
    • If the child is at least 12 years of age, the child’s preference, if any, regarding which parent he/she wants to have primary residence; and
    • Any other relevant factor.
    Joint legal custody does not require equal or nearly equal parenting time with each of the parents.

    Texas employs the Tender Age Doctrine which believes that the interests of a child under the age of three years are best served by living full-time with the primary parent, with short regular visits from the noncustodial parent. Therefore, standard custody and visitation policy does not apply until the age of three.

    Domestic Violence and Child Custody:

    When determining custody and visitation, the court takes into consideration evidence of physical abuse and/or family violence by one spouse against the other spouse, a parent of the child, or any person younger than 18 years of age, committed within a two-year period of the filing of the suit or during pendency of the suit.

    The court will not award joint custody if there is credible evidence of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. Nor will the court award sole custody in this situation.

    If there is evidence of a history or pattern of family violence during the two year period prior to filing suit, or during its pendency, the court may not allow a parent to have access to a child unless it determines that access to the child would not endanger the child’s physical health or emotional welfare, would be in the best interest of the child, and the court issues a possession order designed to protect the safety and well-being of the child and any other person who has been a victim of family violence. The order may include the following requirements:
    • Supervised visitation;
    • Exchange of possession of the child will occur in a protective setting;
    • The parent must abstain from the consumption of alcohol or a controlled substance, within 12 hours prior to or during the period of access to the child; or
    • The parent must attend and complete a battering intervention and prevention program, or course of treatment.
    Support:

    Texas uses the Varying Percentage of Income Model to calculate child support obligations. It is based on the obligor’s net income and the number of children the couple has. When the obligor’s monthly net income/resources are $6,000 or less, the following schedule applies.
      1 child = 20% of the Obligor’s net income/resources
      2 children = 25% of the Obligor’s net income/resources
      3 children = 30% of the Obligor’s net income/resources
      4 children = 35% of the Obligor’s net income/resources
      5 children = 40% of the Obligor’s net income/resources
      6 or more children = Not less than the amount for 5 children
    If the obligor’s net income/resources are greater than $6,000 per month, the court applies the percentage guidelines to the first $6,000 and may recommend additional amounts as deemed appropriate, depending on the income of the parties and the proven needs of the child(ren).

    The obligor’s net income is determined by adding his/her gross income, which includes commissions, overtime pay, tips, bonuses, interest, dividends, rental income, royalty income, trust income, retirement income, disability income, self-employment income, etc., and subtracting social security taxes, federal income tax, state income tax, union dues and health insurance premiums for the child(ren).

    The obligor is typically required to pay for medical insurance and/or health care in addition to the ordered child support payments.

    The court may order either or both parents to support a child per court order:
    • Until the child reaches the age of 18 years or graduates from high school, whichever comes later;
    • Until the child is emancipated through marriage, through removal of the disabilities of minorities by court order, or by other operation of law;
    • Until the death of the child; or
    • For an indefinite period, if the child is disabled and remains so.
    Deviation from Guidelines:

    A court may determine that the application of the established child support guidelines would be unjust or inappropriate in some cases. In making this determination, the court will consider the following factors.
    • The age and needs of the child(ren);
    • The ability of the parents to contribute to the support of the child(ren);
    • Any financial resources available for the support of the child(ren);
    • The amount of time of possession and access to the child(ren);
    • The amount of the obligee’s net resources, including earning potential if his/her actual income is less than what he/should could earn because he/she is intentionally unemployed or underemployed and including an increase or decrease in the obigee’s income that may be attributed to his/her property and assets;
    • Child care expenses incurred by either party in order to maintain gainful employment;
    • Whether either party has custody of another child;
    • The amount of maintenance actually and currently being paid or received by either party;
    • The child(ren)’s educational expenses beyond secondary school;
    • Whether either party has a vehicle, housing, or other benefits furnished by his/her employer, another person, or a business entity;
    • The amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
    • Provision for health care insurance and payment of uninsured medical expenses;
    • Special and extraordinary educational, health care, or other expenses of the parties or of the child(ren);
    • The cost of travel in order to exercise possession of and access to the child(ren);
    • Positive or negative cash flow from any real and personal property and assets, including business and investments;
    • Debts or debt service assumed by either party; and
    • Any other reason consistent with the best interest of the child(ren), taking into consideration the circumstances of the parents.
    The parties may also enter into a written agreement they have negotiated containing provisions for child support and modification of the agreement. If the court finds the agreement is in the child(ren)’s best interest, the court will issue an order in compliance with the submitted agreement.

    Legal Separation

    Texas does not recognize legal separations and has no provisions for court actions regarding legal separations.

    It does allow for spouses to enter into a written agreement concerning the division of property and debt and payment of spousal support while a suit for dissolution is pending. If the court decides that the terms of the written agreement are just and right, those terms are binding on the court.

    If the court approves the agreement, it may set forth the agreement in full and incorporate the agreement by reference in the final divorce decree.

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