Do You Know Texas Divorce Laws?
Looney & Conrad
Do You Need a Divorce Lawyer?
Texas divorce laws are complex and cover spousal support, property distribution, child support, child custody, state requirements and more. Divorce in Texas is different from many other states in the way the law deals with the distribution of property after a divorce. Our Texas divorce lawyers provide legal divorce advice and assistance throughout the Texas divorce process.
Grounds for Divorce in Texas
Texas divorce courts accept both no-fault and at-fault grounds for divorce.
When filing divorce under no-fault grounds, the petition must state the marriage is insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
Typically in no-fault divorce, couples must recognize Texas divorce waiting periods before the divorce can become final.
In at-fault divorce, Texas divorce courts accept a number of grounds for divorce:
- Abandonment: intentionally leaving the other spouse for more than a year without an intent to return
- Adultery: sexual relations outside the bonds of the marriage
- Imprisonment or conviction of a felony: the convicted spouse must be sentenced to a minimum of one year in prison for this to be grounds for divorce. If the conviction occurred on the basis of the testimony of the other spouse, the grounds for divorce cannot be used
- Insanity and confinement to a state mental hospital: spouse must have been insane for at least three years and be in a state where permanent recovery is highly unlikely
- Living separate and apart for at least three years: when spouses choose to live apart for a period of three years or more
- Abuse or mental cruelty: any action which makes continued living together an impossible task (can be physical, verbal, or emotional)
Residency Requirements in Texas
When filing for a no-fault or at-fault divorce, one spouse will need to meet the Texas residency requirement. A Texas divorce court will not accept a divorce petition unless either the petitioner or respondent has been both:
- A resident of the state for the last six months, and
- A resident of the country where the divorce is filed for the last 90 days
Usually, the divorce petition is filed in the county where the petitioner lives.
A person who has not been a resident of Texas but is serving in the Armed Forces of the United States can be considered a Texas resident if he or she has been stationed at one or more military installations in the state for at least the last six months.
The person will also be considered a resident of the county if he or she has been at a military installation in a county of the state for at least 90 days.
Divorce Waiting Periods in Texas
The state of Texas doesn't require a waiting period before filing for divorce. When the couple meets the Texas residency requirement, either spouse can file for divorce at any time.
Once the divorce petition has been filed, Texas divorce law requires the couple to wait 60 days before the divorce process continues.
Texas is one of the few states having a remarriage waiting period. After the divorce petition is finalized, both spouses must wait 30 days before remarrying, unless the Texas divorce court feels the circumstances of the divorce call for a different remarriage waiting period.
Annulment in Texas
Under certain circumstances, an annulment may be possible. If a marriage is annulled, it is as if the marriage never occurred because it was illegal under state law.
Texas divorce courts may declare a marriage void and automatically annulled if:
- The spouses are related
- One spouse was still legally married
- The marriage was between a stepparent and stepchild
- One party was under 16 and did not have a court order
A marriage is voidable and the Texas divorce court may grant an annulment if:
- One spouse was 16 or 17 and the marriage occurred without parental consent or court order, but the annulment cannot be filed after the persons 18th birthday
- One of the parties lacked capacity to consent to the marriage because he or she was under the influence of drugs or alcohol and the other party has not voluntarily cohabited with the party lacking the capacity since the effects of the alcohol or drugs ended
- Either party was permanently impotent at the time of the marriage and the other party has not voluntarily cohabited with the other party since learning of the impotency
- Fraud, duress, or force was used to induce one of the spouses into the marriage and there has not been voluntary cohabitation since learning of the fraud, duress, or force
- One party was unable to consent to the marriage because of a mental disease or defect
- The marriage occurred within the 30 days divorce waiting period in Texas and one party did not know and should not have known of the divorce and has not voluntarily cohabited with the divorced party since learning of the divorce - suite must be brought within one year of the marriage
- The marriage happened within 72 hours of the issuance of the license - suit must be brought within 30 days after the marriage
Alternative Dispute Resolution in Texas
Because the divorce process can be expensive and complicated, most state laws provide for alternatives to divorce court. Many states encourage couples try Alternative Dispute Resolution (ADR) to work through the divorce if the spouses are able to communicate in a positive manner.
With written agreement from both spouses, the Texas divorce court may refer a divorce for arbitration as an alternative dispute resolution resource. In the written agreement, the couple must specify whether the divorce arbitration will be binding or nonbinding. If the agreement developed in arbitration is binding, the Texas divorce court will follow the award of the arbitrator.
Texas divorce law encourages couples to attempt divorce mediation, which can be initiated by either the divorcing parties or a Texas divorce court. If the couple comes up with a divorce settlement in mediation, the agreement is binding where both parties and divorce attorneys have signed the agreement and the agreement states the terms are irrevocable. The Texas divorce court may extend the divorce proceedings for an additional 60 days for proper marital counseling if it seems that reconciliation between the couple is possible.
Collaborative divorce is a process where the spouses and divorce attorneys make a written agreement to each use the best efforts and make a good faith attempt to resolve the divorce on an agreed basis.
During the collaborative divorce process, the couple will not resort to judicial intervention unless to approve the divorce settlement, make legal pronouncements and sign orders that the Texas divorce court consider appropriate.
The divorce attorneys representing the spouses cannot serve as litigation counsel except to ask the divorce court to approve the settlement. The divorce agreement must also include how each party will exchange information, hire experts, etc. Texas divorce courts also allow alternative dispute resolution methods to be used in Texas child custody matters.
Conditions After Divorce in Texas
Division of Rights and Property
Texas is a community property state. This means that all property and debt acquired from the start of the marriage until the end is presumed to be community property. Generally, the only property acquired during the marriage that can remain separate property is that given to one spouse by gift, devise or descent. Upon divorce, Texas courts will split the community state using a just and right division. This does not necessarily mean the estate is divided equally. Factors for a just and right division include the following:
- Earning capacity of the spouses;
- Educational background of the spouses;
- The size of the separate property estate of each spouse;
- Age, health and physical condition of the spouses;
- Fault in the breakup of the marriage;
- Benefits the innocent party would have received had the marriage continued; and
- A spouse's probable need for future support
Marriage can either be dissolved by death or divorce. If property was acquired in a different state, the division of property upon death or divorce will be treated differently. If property was acquired in a different state, and the spouses now reside in Texas, upon divorce a Texas court will look at all property as if it were acquired in Texas. This means that if the property was separate property in another state, there is a chance it could be classified as community property in Texas. If property was acquired in another state, then the spouses moved to Texas, property will be characterized at the 'situs of acquisition' upon death of a spouse. This means that Texas will apply laws of the state where the property was characterized when classifying the property as either community or separate property.
Under the Texas Constitution, spouses and future spouses may partition and exchange their property by written agreement. This allows spouses and future spouses to make many agreements regarding characterization of property, such as an agreement that each spouse will keep their own salary as their own separate property.
Alimony in Texas
Under Texas divorce law, alimony is referred to as spousal maintenance. A spouse requesting maintenance must first show that he or she cannot provide for their minimum reasonable needs upon divorce. They must then show one of the following:
- The spouse from whom maintenance is requested was convicted of a criminal offenses that also constitutes an act of family violence, committed during the marriage against the other spouse or the other spouse's child and the offense occurred. This violence must have occurred within two years before the date of filing a suit for divorce or while the suit is pending;
- The spouse requesting maintenance is unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating physical or mental disability;
- The spouse requesting maintenance has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse's minimum reasonable needs; or
- The spouse requesting maintenance is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs.
If the Texas divorce court determines a spouse is eligible to receive maintenance, the court will determine the nature, amount, duration and manner of periodic payments by considering factors such as:
- Financial resources of the spouse seeking maintenance;
- Education and employment skill of the spouses;
- Length of the marriage;
- Age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance
- The effect on each spouse's ability for their minimum reasonable needs while providing periodic child support payments or maintenance;
- If either spouse acted to cause excessive or abnormal expenses or destruction, concealment, or fraudulent disposition of marital property;
- The contribution by one spouse to the education, training, or increased earning power of the other;
- The property brought into the marriage by either spouse;
- Property brought to the marriage by each spouse;
- Contribution of a spouse as a homemaker;
- Marital misconduct, including adultery and cruel treatment, of either spouse; and
- Any history or pattern of family violence.
Divorce courts in Texas limit the length of maintenance payments to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse's minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill.
Exceptions are possible if the ability of the receiving spouse's ability to provide for his or her needs through employment is substantially or totally diminished because of:
- An incapacitating physical or mental disability of the spouse receiving maintenance; or
- Duties as the custodial parent of child of any age with an incapacitating physical or mental disability.
Under the Texas Family Code, a divorce court may not order maintenance that requires a spouse to pay monthly more than the lesser of $5,000 or 20% of the spouse's average monthly gross income. Spousal maintenance is terminated if the receiving spouse dies or remarries. Spousal maintenance may be modified if it can be proved there's a material and substantial change in the circumstances of either party.
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Child Custody Rights
When Texas divorce courts are deciding child custody, decisions are based on the best interest of the child. Under Texas divorce law, it's assumed that joint child custody (conservatorship) is best for the child unless proven otherwise.
To determine which parent has primary physical child custody, the divorce court considers the following factors:
- History of contact between the parents and child
- Health, safety, and welfare of the child
- Mental and physical health of the parents
- How close the parents live to each other
- Preference of the child (if the child is 12 or older)
- Evidence of child abuse
Texas divorce law allows parents to enter into a parenting plan to determine child custody. The divorce court will enforce the parenting plan as long as it is in the best interest of the child.
Modifying Child Custody in Texas
A Texas court can modify a child custody order if:
- The court has the power to make an initial child custody determination (also called continuing jurisdiction); and
- No other state court has the power to decide the case.
Grandparent Visitation in Texas
Texas divorce laws don't automatically grant visitation rights for grandparents, but allow grandparents to petition for child visitation rights. If a grandparent chooses to petition the court, a set of grandparent visitation and custody guidelines will be considered to determine what's in the best interest of the child.
If both parents of the child have died, the court may appoint grandparents or other family members as legal guardians or conservators of the child. A grandparent may request child custody or child visitation by filing a petition with the court.
The court will order child custody or child visitation rights to a grandparent if:
- At least one biological or adoptive parent hasn't had that parent's parental rights terminated
- The grandparent can show that a parent is not acting in the best interest of the child by denying grandparent visitation or custody
The grandparent requesting custody or visitation rights is an actual parent of the child's parent and that parent of the child:
- Has been incarcerated during three months before filing the petition
- Has been found incompetent by a court
- Is deceased
- Doesn't have actual or court-ordered custody or visitation to the child
A biological or adoptive grandparent may not request child custody or visitation rights to a grandchild if:
- The grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent
Each of the biological parents of the grandchild has:
- Had the person's parental rights terminated; or
- Relinquished parental rights and designated an authorized agency, licensed child-placing agency or person other than the child's stepparent as the managing conservator of the child
Child Support in Texas
To determine child support, Texas divorce courts use a percentage of income formula. The amount of child support is calculated as a percentage of the income of the parent ordered to pay child support. To determine the percentage of income the parent should pay in child support, Texas divorce courts will factor in the number of children requiring support. For example, the court can award child support in the amount of 20% of the payer's net resources for one child and 25% for two children.
Specific official child support guidelines are outlined in the Texas Family Code. If a court orders child support that comports with these guidelines, the judgment is presumed to be reasonable. If a court is to award child support that is outside the guidelines set forth in the Family Code, they must take the following factors into account:
- Age and needs of the child;
- Ability of each parent to contribute to supporting the child;
- Financial resources available for supporting the child;
- The amount of time of possession and access to the child;
- Parents' net resources to pay child support, including earning potential if the actual income is significantly less than what a parent could earn, if intentionally unemployed or underemployed;
- Childcare expenses incurred by either party in order to maintain gainful employment;
- Whether either party has the managing conservatorship or actual physical custody of another child;
- Amount of alimony or spousal maintenance actually and currently being paid or received by a party;
- Expenses for a child for education beyond secondary school;
- Whether the parties have an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
- 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 or extraordinary educational, health care, or other expenses of the parties or of the child;
- Cost of travel in order to exercise possession of and access to a child;
- Positive or negative cash flow from any real and personal property and assets, including a business and investments;
- Debts or debt service assumed by either party; and
- Any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
Texas divorce courts may order either parent to provide health insurance for the child. A court can also order wages to be withheld to aid in enforcement of child support obligations.
To modify child support in Texas, there must be a material and substantial change in the circumstances of a person affected by the order. It may also be possible to petition for child support modification if it has been three years since the last child support order and the child support previously ordered differs by either 20% or $100 from the child support guidelines.
Child Support Enforcement in Texas
Child support enforcement is a problem for most states trying to secure the financial future of children. To help collect unpaid child support, most states have set up child support enforcement agencies that have developed different enforcement techniques.
Under Texas divorce law if you haven't paid child support you could be facing a number of penalties, including:
- Wage garnishment
- Interception of tax funds, lottery winnings, or other money due from state or federal sources
- Liens filed against property or assets
- Driver's, professional, hunting, and fishing license suspensions
- A lawsuit filed against the noncustodial parent asking the court to enforce the order
For assistance, contact a divorce lawyer at Looney & Conrad, P.C. at 281-597-8818.
Our attorneys are available 24 hours a day, 7 days a week for a free, no-obligation case evaluation.
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918 Austin Street Hempstead, Texas 77445