Divorce in Texas
Some important things to know about divorce in Texas…
Can I file for divorce in Texas?
In order to file for divorce in Texas, there are essentially two residency requirements. The general rule is that at least one spouse must have (1) been a domiciliary of Texas (living in Texas with the intention of making Texas his or her permanent home) for the preceding 6-month period and (2) a resident of the county in which the suit is filed for the preceding 90-day period.
Do I need an attorney to file for divorce in Texas?
The short answer is no. It is possible to find divorce forms online, but you must fill them out properly and file them on your own and pay the required fees. However, even if you and your spouse have an agreement on all property and child related issues in your divorce, it could be helpful to have an attorney to prepare and review your pleadings and settlement agreement, especially if you have a complicated estate or other assets such as a business or rental properties. You will also need to draft a Final Decree of Divorce for the court to review and sign. If the court does not feel you’ve included all the necessary information for a decree, the court may suggest that you hire an attorney to revise the decree to include any missing information before the court will grant your divorce.
If your divorce is contested, or becomes contested at any point, you will likely want to hire an attorney to advocate on your behalf and to handle all of the legal procedures, including motions, discovery, deadlines, pre-trials, hearings, etc.
Uncontested v. Contested
Divorce falls into one of two categories: uncontested and contested. An uncontested divorce occurs when a couple agrees on all issues, including property and asset/debt division and all child related issues. A contested divorce occurs when the parties cannot agree on all issues regarding property division, assets/debt division, conservatorship, possession, child support, etc. Parties involved in a contested divorce can handle their divorce through the standard litigation process or through a collaborative law approach.
Collaborative Law Approach
A collaborative divorce is a process that promotes open communication between disputing parties with the assistance of collaborative attorneys and professionals. This approach falls under the umbrella of collaborative law which utilizes “interested-based negotiation,” enabling spouses to make agreements by focusing on their most important individual and mutual goals. Collaborative law emphasizes parties working together towards a solution that’s best for all parties and children involved. It is an innovative approach to divorce, from the very simple cases to the most complex.
Filing for Divorce & Responding Timely
First, one spouse will file a petition which states the grounds alleged for the divorce. In Texas, grounds for divorce include—
- insupportability (no fault grounds),
- felony conviction of your spouse,
- abandonment (away for at least one year with the intention of abandoning the other spouse),
- living apart (three years or more), or
- confinement of a spouse to a mental hospital.
Upon receiving a divorce petition, the receiving spouse must respond to the suit either by filing an answer or by signing a waiver of service. If you have been personally served with a divorce petition, you only have so many days to file an answer in response to the suit or the other party may seek a default order if you do not respond timely. If you have been provided with a copy of a divorce petition along with a waiver of service to consider, you may want to consult with an attorney before signing this document. Should you decide to consult with and/or hire an attorney at this point, the attorney will evaluate the facts of your case and begin the process of gathering information from you that’s necessary to complete the divorce.
Many counties have standing orders that are effective as to both parties upon the filing of a divorce case. Be sure to read the standing order from the county in which you are filing before you file your case.
60-day Waiting Period
In Texas, there is a 60-day waiting period before a divorce can be finalized. Please note that the 61st day after the filing for divorce is the earliest day that a divorce may be finalized; however, the majority of cases take longer. After the expiration of 60 days and a decree of divorce is agreed upon by the parties and signed a judge, or a court has made a ruling concerning all property division and child related issues following a final trial, a judge will grant your divorce.
Information Gathering / Discovery
For divorce cases filed on or after January 1, 2021, both parties in Texas must (with a few exceptions) exchange responses to Initial Required Disclosures within 30 days of the filing of an answer, counterpetition, or waiver of service per Rule 194.2 of the Texas Rules of Civil Procedure. The other party does not have to ask for this information, so it’s important to timely respond to initial disclosures or to obtain a written agreement with the other party before the due date to waive responding to initial disclosures indefinitely or until a later date.
Also, while your case is pending, during the 60-day waiting period, and likely beyond, you may be asked to complete an Inventory and Appraisement that will result in gathering documentation about all community property assets/debts, separate property, and/or possible reimbursement claims of the parties. You may also be asked to complete a Proposed Support Decision which discloses your income, monthly expenses, and debts. This document is used in connection with child support and/or spousal maintenance calculations.
Sometimes serving and/or responding to formal discovery will be necessary in order to collect and exchange additional information regarding your case that’s in addition to the Initial Required Disclosures and Inventory and Appraisement mentioned above. Discovery is typically in the form of written questions (Interrogatories, Request for Admissions, Request for Production of Documents, and Depositions). Responses to written discovery and production of documents are typically due within 30 days unless otherwise agreed to in writing between the parties or ordered by the court.
Either party has the right to serve formal discovery on the other party (unless restricted by a court order) in order to gather additional evidence or information; therefore, you may be asked to complete discovery served on you by the other party and vice versa.
Not every case will need temporary orders, but family law cases can take a long time, especially if your case is contested. Temporary orders are a way to put an agreement in place regarding property and/or child related issues while the process for obtaining a final order is pending.
Temporary Orders may address the following issues:
- temporary conservatorship, possession, and/or child support;
- temporary payment of insurance for the children;
- temporary payment of bills or other debts;
- temporary use of property (real property, vehicles, etc.);
- temporary payment of spousal maintenance;
- temporary injunctions preventing one or both parties from performing certain acts that might endanger another party or child (i.e., liquidating financial accounts, drinking alcohol while in possession of the child, allowing the child to be in the presence of another person or paramour)
- the exchange of financial information; and/or
- interim attorney’s fees.
Either party can ask for temporary orders by filing a Motion for Temporary Orders or making the request in another pleading (i.e., Original Petition for Divorce, Counterpetition for Divorce). Temporary orders are put in place either by agreement (informally or through mediation) or after a hearing but before a final trial. If a hearing is necessary, this hearing is a full evidentiary hearing often with testimony by the parties, outside witnesses, and exhibits before a judge. The judge will listen to the testimony and evidence presented by both parties and make a ruling for temporary orders at the conclusion of the hearing. These temporary orders will last until a final order is signed by the judge (or the temporary orders are changed by the judge or agreement by the parties).
Temporary Restraining Order (TRO)
A temporary restraining order (TRO) is used in family law cases as an emergency court order that prohibits the other party from specific actions in order to protect your property, your safety, or the safety of a child until a temporary orders hearing can be held. For example, a TRO may temporarily limit access to or possession of a child or prevent the other party from liquidating certain financial accounts if granted.
To obtain a TRO, you must file a Motion for Temporary Restraining Order and Request for Temporary Orders. You must also file a signed and notarized affidavit with your motion that explains why the TRO is necessary. If a judge finds the TRO is necessary, he or she will sign the order and a hearing on temporary orders will be held within 14 days or less. A TRO will expire after 14 days unless extended by the court. A TRO can only be extended once for an additional 14 days, unless the parties agree otherwise.
In Williamson County and Travis County, Texas, the Courts have implemented Standing Orders. A Standing Order is a court order that automatically takes effect (starts) when a case is filed. The purpose of Standing Orders is to protect the parties and their children and also to preserve the parties’ marital estate while a divorce case or suit affecting the parent-child relationship (SAPCR) is pending before the Court.
You may reference the links below to view the current Standing Orders for Williamson County and Travis County, Texas –
Conservatorship, Possession, and Child Support
We often find that clients have a skewed view or a difficult time understanding the differences between conservatorship, possession, and child support under the Texas Family Code. To learn more about these three areas of law, go to the Child Custody and Child Support pages or Click here to see a visual aid which outlines the differences and similarities between these three areas of law.
Best Interest of the Child
In Texas, unless the parties are able to resolve certain issues related to the child including conservatorship and possession, the court acts in the “best interest of the child” when deciding these matters. Many parents mistakenly believe that under Texas law that a child can make their own decisions (i.e., where they primarily want to live) once they turn twelve years of age or older; however, this issue is more complicated and requires a thoughtful approach prior to requesting that the Court talk to your child. Bottomline—the Court always seeks the Best Interest of the Child despite what the child may say he/she wants.
Click here to learn more about the factors the court considers when making this determination in cases involving minor children.
PROPERTY DIVISION OF ASSETS / DEBTS
During a divorce, a major concern for parties is how marital assets and debts will be divided. Courts are not required to divide a couple’s estate equally. In Texas, the legal standard for dividing assets and debts in a divorce is a “just and right” division. Most courts consider a “just and right” division to start with a 50/50 split of the estate (assets and debts), and then adjust the division based on a variety of factors. Some factors commonly considered by the court when making the determination for a “just and right” division include:
- a spouse’s fault in the breakup of the marriage
- age and physical conditions of the spouses
- education, employment, and earning capacity of the spouses (or inequities in earning potential of the spouses)
- financial obligations of the spouses
- which spouse has primary conservatorship of the children
- needs of any adult children
- whether either spouse has a disability
- the wasting of community assets by a spouse
- whether a spouse committed fraud on the community
- the size of separate estates of the parties
- expected inheritance of a spouse
Marital Assets: Community Property v. Separate Property
Texas is a community property state so there is a presumption that everything the spouses own is community property so it’s important to understand the differences between community property and separate property when considering a “just and right” division of assets and debts in a divorce.
All property and earnings acquired by either party during the marriage is presumed to be community property. Who purchased the asset or whose name is on the title, account, or lien, does not alone determine the character of the property.
Some common examples of community property include:
- income earned from employment during the marriage
- unemployment compensation and payment of lost wages
- bank accounts containing funds acquired during the marriage regardless of whether the account is a single or jointly held account
- real estate or vehicles purchased during the marriage
- contributions made by either spouse to retirement plans (401k, IRA, pension, etc.) during the marriage
- long-term investments acquired during the marriage
- personal property items acquired during the marriage (furniture, appliances, jewelry, etc.)
Separate property is property that was either owned by one spouse prior to marriage or acquired by a spouse during the marriage by inheritance, gift, etc. A spouse who asserts that a particular asset is separate property has the burden to prove its separate property characterization. If that spouse can prove by clear and convincing evidence that the property is his/her separate property, that asset will remain the separate property of that spouse and is not subject to division.
Some common examples of separate property include:
- jewelry given to a spouse by the other spouse (i.e., engagement ring/wedding ring)
- spouse’s inheritance by a family member
- spouse’s personal injury settlement resulting from a car accident in which the spouse was injured (not including lost wages)
- a house purchased by one spouse prior to marriage
- contributions made to a spouse’s retirement account before marriage
In Texas, unless there is a marital property agreement stating otherwise, one or both spouses may have a reimbursement claim which may affect how property is divided in a divorce case. The three marital estates that exist within a divorce case are:
- the community property estate;
- the separate property estate of one spouse; and
- the separate property estate of the other spouse.
A reimbursement claim may arise when one of these marital estates seeks to recover money from another marital estate in a divorce. For example, if the wife owned a house prior to marriage (separate property of wife) and the couple decided to spend husband’s $50k employment bonus (acquired during the marriage) to pay down the lien on the property, a reimbursement claim could allow the community estate to recover the $50k spent for the reduction of the lien on wife’s separate property.
To learn more about the various types of reimbursement claims the court may recognize, see Texas Family Code § 3.402 or consult an attorney.
Many of these reimbursement claims can be complicated and may require significant tracing and back-up documentation to make a proper claim. Often times, documents are discarded by one spouse or another, making documentation difficult to recover or obtain if one is making a claim for a transaction that may have occurred early on in the marriage or prior to marriage.
On the other hand, Texas Family Code § 3.409 states that the court may not recognize a marital estate’s claim for reimbursement for the following:
- child support, alimony, or spousal maintenance;
- living expenses of a spouse or child of a spouse;
- contributions of property of nominal value;
- payment of a liability of a nominal amount; or
- student loans owed by a spouse.
Dividing Assets & Debts During a Divorce
Your attorney may create a spreadsheet that lists all your assets/liabilities and their values so that you can easily see and manipulate the spreadsheet to come up with creative ways for a desired percentage split (i.e., 50/50, 55/45, 60/40, etc.) of the marital assets/liabilities. When parties cannot agree on how to divide the marital estate, the Court will render a “just and right” order that divides the property.
Either party can make a request for spousal maintenance, however, certain conditions must be met in order to receive it. There are multiple factors that can determine whether or not a party is entitled to receive spousal maintenance.
If a spouse may be entitled to receive spousal maintenance, this amount must also be determined. Per Texas Family Code § 8, a court may not order spousal maintenance that requires an obligor to pay more than the lesser of:
- $5,000; or
- 20% of the spouse’s average monthly gross income.
Texas law also determines how long spousal maintenance can be awarded and paid from one spouse to another. The spouse awarded maintenance will typically receive periodic payments from the other spouse either directly or through an income withholding order.
*Texas law does not recognize the term “alimony”; therefore, agreed upon alimony or spousal support included in an order (i.e., divorce decree) is a contract between the parties; whereas spousal maintenance is enforceable under a court order.
If you are contemplating divorce or currently going through a divorce, you may have a number of questions and concerns that you’d like to discuss. The decisions you make during this process are important and may affect you and/or your children long-term. It’s important you feel good about the decisions you make and the terms you agree to during the process.