Divorce in Texas

Divorce in Texas

Divorce refers to a court-ordered dissolution of a marriage, releasing the parties involved from the duties and responsibilities of marriage. Spouses do not need to have fault grounds to divorce in Texas. Hence, a spouse does not have to prove that the other party did anything wrong in order to file for divorce. To get a divorce in Texas, specific requirements must be fulfilled, such as the residency requirement and the mandatory 60-day waiting period after petition filing before divorce may be finalized. Texas divorce records are typically maintained within the judicial districts were the case was filed and heard. They may be made available to interested and eligible persons on request.

The divorce rate in Texas is lower than the national divorce rate. Per a CDC statistic, the national divorce rate, including annulment, was 2.9 incidents per every 1,000 inhabitants in 2017. In the same year, Texas recorded a divorce rate of 2.2 incidents per 1,000 residents, including annulments. For the previous 11 years, the divorce rate in Texas had been declining. In 1990, the divorce rate was about twice the 2017 rate at 5.5 incidents for every 1,000 residents.

In 2019, there were 1.0 more divorces per 1,000 women aged 15 and over in Texas compared to the United States. Between 2009 and 2019, the divorce rate in Texas decreased by 3.3 incidents per 1,000 women aged 15 and over. Although the causes for the breakdown of marriages vary considerably, the most commonly cited reasons for divorce include physical and emotional abuse, arguments and verbal fighting, and infidelity among spouses.

Divorce Laws in Texas

Texas divorce statutes are codified under Section 6.001 et. seq. of the Texas Family Code. However, you may find other provisions for the division of properties in a divorce under Sections 3.002 and 7.001 of the Texas Family Code. Texas divorce law permits both no-fault divorce and at-fault divorces. In a no-fault divorce, no divorcing party is required to prove the other party is culpable. However, legally, the divorce petition for a no-fault divorce will state the cause as "insupportability". This is defined per Texas divorce laws as when a marriage can longer be sustained due to discord or conflict of personalities that undermines the marital relationship's legitimate purposes and precludes any reasonable prospect of reconciliation.

Before a Texas court may grant a divorce on a no-fault ground, both parties must state under oath that their union has become insupportable as defined under the Texas Family Code. If the parties disagree on a no-fault ground, the divorce will go to trial, and the grounds will be based on the evidence and case that can be proved in court. Acceptable grounds for divorce in Texas include:

  • Confinement in a mental institution: This is grounds for divorce if the respondent spouse has been confined to a mental institution for at least three years and the prospect for recovery is bleak.
  • Separate living: Though Texas does not recognize legal separation, the court may grant a divorce if couples have lived in separate homes for at least three years.
  • Abandonment: This happens when the respondent spouse abandons the petitioner, is absent for one year, and has no intention of returning.
  • Conviction of a crime: If a spouse was convicted of a felony and has been in jail or prison for at least one year, the court may grant a divorce, if the imprisoned spouse was not convicted owing to the petitioner spouse's testimony.
  • Adultery: Although marriage may be dissolved on the grounds of adultery, suspicion of adultery alone does not constitute grounds for divorce. The court requires evidence, either direct or circumstantial. Generally, the court will accept proof showing a spouse had both the desire and opportunity to commit adultery. This evidence may include emails or text messages to a third party suggesting a desire for sexual intimacy, as well as photographic proof or testimony proving the two were together in a location conducive to perpetrating adultery, such as a hotel.
  • Cruelty: To dissolve a marriage on this ground, the petitioner must prove to have been subjected to harsh treatment by the other party that makes cohabitation no longer possible. To qualify as a cause for divorce, the treatment must have a detrimental impact on the divorce-seeking spouse's physical or mental health such that it is no longer safe or appropriate for the parties to continue the marriage.

Separation vs. Annulment vs. Divorce

For couples looking for alternatives to divorce, an annulment or separation may be a suitable option depending on the circumstance. Note that Texas views the three situations differently, hence, one may not be a substitute for the others.

Separation

Texas does not recognize legal separations and does not have any procedures for pursuing legal separations in court. However, the state permits a couple to enter into a formal agreement governing the division of property and debt and the payment of spousal maintenance. If the court determines that the written agreement's provisions are fair and reasonable, the terms become binding on the court. If the court endorses the written agreement, it may outline the agreement in full and reference it in the final divorce decree.

In a legal separation, the couple remains married and can only dissolve the union if a divorce order or decree is issued in court upon the finalization of a divorce proceeding. After a formal separation, the parties may continue to be liable for home expenses and marital debts, and one divorcing party may continue to be covered by the other's health insurance plan. However, after the divorce, the couple’s lives are separated, they are no longer married, and marital duties and responsibilities cease to exist between the parties.

Annulment

In Texas, certain marriages are voidable, especially if the marriage should not have occurred due to a trick or deception committed by one of the parties at the time of the marriage. The parties to a voidable marriage may petition for an annulment, which declares the marriage invalid.

If a marriage occurred in Texas or one of the parties lives in Texas, the court may grant an annulment if one of the parties is aged 16 or older but under 18, and entered the marriage without parental consent or court order. The petition for annulment may be filed by:

  • A next friend, acting on behalf of the underage party (this individual must file the annulment action within 90 days of the marriage date, or the action would be prohibited); or
  • A parent; or
  • A judicially appointed managing conservator or guardian of the minor, which may be a person, an authorized agency, or a court.

The court may use its discretion in granting an annulment for an underage cause, taking into account all relevant circumstances about the parties' welfare, including if the wife is pregnant. Once the previously juvenile party attains the age of 18, an annulment suit may no longer be filed.

Among the other grounds for annulment are the following:

  • The divorcing party bringing the action was under the influence of alcohol or drugs at the time of the marriage and hence lacked the ability to consent to marriage.
  • Either partner was permanently impotent at the time of the marriage for medical or mental reasons, and the petitioner was unaware of the impotence.
  • The other divorcing party induced the petitioner to marry by deception, duress, or force.
  • At the time of marriage, the petitioner lacked the mental ability to consent to marriage or comprehend the nature of the marriage ceremony due to a mental illness or defect.
  • A divorcing party concealed a previous divorce from the petitioner that happened less than 30 days prior to the marriage, and the annulment action is filed less than one year after the marriage.
  • The couple married within 72 hours of obtaining the marriage license and the annulment action is filed within 30 days after the marriage.

To be legitimate on any of these grounds, the petitioner must not have cohabitated with the other spouse willingly after learning of the problem or after the petitioner is no longer influenced by the issue. An annulment will not be granted upon the death of any of the parties in the marriage.

Divorce

A divorce is a court decree that officially dissolves marriage between a husband and wife prior to either spouse's death. After the divorce has been finalized, the parties are legally free to remarry or enter a domestic partnership with another individual in Texas counties permitting domestic partnerships.

A couple opting for divorce may pursue a "no-fault" or "fault-based" divorce. A no-fault divorce occurs when one spouse files for divorce without blaming the other spouse for the marriage's collapse. This kind of divorce may be occasioned by irreconcilable disagreements or a lack of affection. A fault-based divorce occurs when one of the spouses blames the other for the divorce. Adultery, domestic violence, and felony convictions are grounds on which a fault-based divorce may be granted.

Divorce and Property in New York

Texas is considered a community property state, meaning that courts presume that any property acquired or owned by either spouse while the marriage lasted is community property, which the pair owns equally.

A court will distribute community property equally between the spouses after a divorce, often implying a 50-50 split. However, variables such as unequal earning capacity and fault in the marital relationship may influence the property split in certain circumstances. The state Family Code only requires a just and right division of community property. Hence, divisions may be 60-40, 55-45, or any other ratio depending on the circumstance.

For instance, if one spouse acting as a homemaker did not finish college, and the other spouse earns a substantial salary, the homemaker may walk away with a more considerable portion of the community estate, especially if the other spouse commits adultery or acts cruelly. On the other hand, if two spouses earn the same amount of money without fault, they may get a 50-50 split based on other reasons.

An individual having separate property who does not want such property to be shared with the soon-to-be ex-spouse will be required to trace the property back to its original source using clear and compelling proof. Separate property refers to property acquired by one spouse prior to marriage, as well as property acquired by gift or inheritance. For instance, you may demonstrate that you inherited money from your grandmother and prove that you always maintained it in a separate account designated only for your use.

Texas Divorce Attorney

Even if there are no children involved or disputes to resolve, divorce entails much more than a change in marital status. You and your spouse will need to discuss several issues that may cause friction even among spouses with amicable relationships. Your settlement will likely comprise one or more of the following:

  • Child visitation, support, and custody rights
  • Personal property, bank accounts, stocks, and other assets distribution
  • Division of marital liabilities
  • Possession or sale of the marital home
  • Spousal support

Each of these issues has its own categories of rules that may be difficult to grasp. Consequently, most persons who choose to self-represent end up not significantly settling the outstanding issues. A Texas divorce attorney has several years of experience on each of these issues and is knowledgeable and capable of fighting for your rights and the rights of your child from the outset to ensure you receive a significant settlement. Hence, it is recommended that you hire an experienced Texas divorce attorney to deal with the complex process often associated with filing a divorce action and the administrative procedures of divorce court proceedings.

How to File for Divorce in Texas

You can file a divorce in Texas by following these steps:

  • Meet the Residency Requirements: Before you or your spouse may apply for an uncontested divorce in Texas, either party must have lived in the state continuously for six months before filing the divorce action. If neither spouse satisfies residency requirements, no divorce may be filed in Texas.
  • Get a Petition of Divorce: A divorce petition is a legally accepted document or set of documents required to be submitted to the court to initiate the divorce process legally. This petition may be obtained from the county clerk's office in the Texas county district court where you live. You must provide the required information, including contact information for both parties, information about your assets, debts, proposed settlement plans, and grounds for filing for divorce.
  • Sign and File the Petition: Upon completing the required forms, sign and file them with the clerk's office. Two copies of the form are required. After paying the filing fee, the clerk assigns your petition a case number and stamps it as received.
  • Serve a Copy on Your Spouse: Provide your spouse with a copy of the divorce petition. You have three options for serving the papers: personally, via the county sheriff's office, or through a private party. You must obtain evidence of service, which is then submitted to the clerk of the court.
  • Finalize Settlement Agreement: After submitting the proper documents, the clerk's office will schedule your court hearing. The hearing will not begin until after the 60-day "cooling-off" period has expired. You and your spouse should use this period to complete any settlement agreements and draft the final divorce decree. This document describes the details of the settlement agreement.
  • Attend the Divorce Hearing: Following the 60-day waiting period, you and your spouse are required to appear at the divorce hearing. A judge will consider all of your submitted documentation during the hearing, including the petition for divorce, settlement agreement, and divorce decree. The court will interrogate both spouses to ascertain their agreement on all divorce issues. After, the judge will sign the final divorce decision at the conclusion of the session.
  • File the Final Decree with the Clerk of the Court: Take the final, signed divorce decree to the clerk's office and file it. You should get two certified copies of the decree from the clerk; retain one for yourself and give the other to your spouse.

Texas Alimony

Following a divorce, a divorced party may be awarded alimony in Texas. Pursuant to Section 8.051 of the Texas Family Code, the court may order alimony for either divorcing party only if, following divorce, the divorcing party requesting alimony is likely to lack sufficient property to provide for basic needs and:

  • Within 24 months of filing the divorce petition, the divorcing party required to pay alimony was convicted of domestic violence.
  • The marriage lasted 10 years or more, and the divorcing party requesting alimony lacks sufficient property to meet basic necessities and cannot be self-supporting through work due to an incapacitating physical or mental handicap.
  • The union lasted 10 years or more, and the divorcing party requesting alimony lacks adequate property to meet basic needs. Here, the party requesting alimony must be the custodian of a child who requires extensive care and personal supervision, necessitating the party’s continued residence at home with the child
  • The union lasted 10 years or more, and the divorcing party seeking alimony lacked adequate property and earning capacity in the labor market to meet minimum necessities.

In determining the award of alimony, the court will review:

  • The financial resources of the divorcing party requesting alimony
  • The education and employability of the divorcing parties
  • The duration of the marriage
  • The ability of the divorcing party requested to pay alimony to meet personal needs to provide child support payments
  • The property brought to the marriage by either divorcing party
  • The marital misconduct of the divorcing party requesting alimony
  • The efforts of the divorcing party requesting alimony to pursue available employment counseling
  • A divorcing party's contribution as a homemaker
  • The age, employment history, earning capacity, and the physical and emotional condition of the divorcing party requesting alimony.

An alimony-paying party in a divorce may not be ordered by the court to make monthly payments in excess of $2,500 or 20% of their average monthly gross income, whichever is less. Payments are usually limited to amounts necessary to meet the basic needs of the divorced party receiving the payment.

Maintenance does not apply to Department of Veterans Affairs service-connected disability compensation, social security and disability payments, or workers' compensation benefits. Maintenance payments terminate upon either party's death or the remarriage of the divorced party receiving alimony payments. If the divorcing party receiving payments continues to live with another person at a permanent residence on a conjugal basis, a hearing to terminate the maintenance order may be initiated.

Texas Child Custody

Texas child custody refers to the legal right to keep, control, guard, and care for a child in Texas State. The primary consideration in deciding custody is the child's best interest. Texas public policy is to ensure that child maintains frequent and continuing contact with the divorced parent who has shown proof of acting in the child's best interest; to provide a child with divorced parents with safe, stable, and nonviolent environments; and to encourage divorced parents to share in the rights and responsibilities of child-rearing after parents separate or divorce.

If the divorced parents cannot agree on custody and do not submit a formal parenting plan to the court, the judge (or jury, if asked) may grant joint legal custody based on the following considerations:

  • Whether shared custody will help the child's physical, psychological, or emotional development
  • The parents' capacity to prioritize the child's wellbeing and make joint decisions in the child's best interests
  • Whether either divorcing parent is capable of encouraging and accepting a child's cordial relationship with the other parent
  • Whether both divorcing parents were involved in the child’s upbringing prior to the commencement of the lawsuit
  • The proximity of the divorcing parents' houses geographically
  • If the child is above the age of 12, the child's choice pertaining to which divorcing parent to live with
  • Any additional significant factor

Note that joint legal custody does not need each parent to have an equal or nearly equal amount of parenting time. Texas adopts the Tender Age Doctrine, which holds that a child under the age of three should live full-time with the custodial parent and get regular brief visits from the noncustodial parent. As a result, standard custody and visiting policies are not applicable until the child reaches the age of three.

Texas Child Support

Texas child support is payment made by one or both parents in a divorce for the care of the child produced in the marriage. Child support is issued pursuant to a court order until the child graduates from high school or is aged 18, whichever event occurs later. Texas calculates child support payments using the Varying Percentage of Income Model. This model determines child support payments using the paying parent's net income and the number of children shared between the divorced parties. The following schedule applies when the paying parent's monthly net income or resources are less than $6,000 per month.

  • 1 child: 20% of the paying parent's net income
  • 2 children: 25% of the paying parent's net income
  • 3 children: 30% of the paying parent's net income
  • 4 children: 35% of the paying parent's net income
  • 5 children: 40% of the paying parent's net income
  • 6 or more children: Not less than the amount for 5 children

If the paying parent's net income or resources exceed $6,000 per month, the court applies the percentage guidelines to the first $6,000 and may prescribe additional amounts as necessary, based on the paying parent’s income and the child's demonstrable needs. Typically, the child-support paying parent is compelled to pay for medical insurance or health care in addition to the mandatory child support payments.

The court may compel one or both parents to support a child for the following periods:

  • Until the child attains emancipation by marriage, through the elimination of minorities' disabilities by court order, or by other legal means
  • Until the child dies
  • For an indeterminate time, if the child is handicapped and continues to be disabled.

Texas Divorce Forms

Texas divorce forms are available on the Texas courts website and the Texas Law Help website. You can find forms for multiple categories of divorce, such as:

  • Set 1 - Divorce forms for divorces with no children and no real estate
  • Set A - Divorce forms for divorces with no children and for opposite-sex spouses
  • Set B - Divorce forms for divorces with children and for opposite-sex spouses
  • Set C - Divorce forms for divorces with children and with the final court order in place for custody and support for opposite-sex spouses
  • Set D - Divorce forms for divorces with no children and for same-sex spouses