Filing for Divorce in Texas

Filing for Divorce in Texas

Getting a Divorce in Texas? Divorce Law Cheat Sheet for the State of Texas

1. What are the residency requirements for filing for divorce in Texas?

You or your spouse must have been a resident of Texas for at least six months before filing. You must file in the county in which you or your spouse has lived for at least 90 days.

2. Does Texas have a waiting period?

Yes. The court will not grant you a divorce for at least 60 days after you file. In addition, the court may order you and your spouse to seek counseling during this time. The counselor will be required to submit a report at the end of your counseling telling the court whether there’s a reasonable chance you might reconcile. If so, the court may order you to continue counseling for as long as 60 days further. If you and your spouse have children younger than 18, your counseling may address issues your children are facing as a result of your case.

3. Does the state have grounds for divorce?

Yes. You may file for a divorce if conflict between you and your spouse is so great that there’s no reasonable hope you might reconcile.In addition, you may file on these grounds in Texas:

  • Your spouse is so cruel to you that continuing to live together is impossible.
  • Your spouse has committed adultery —” had an affair.
  • Your spouse has been convicted of a felony, has been in prison for at least a year and has not been pardoned (unless your spouse was convicted based on testimony by you).
  • Your spouse has abandoned you and been gone for at least a year.
  • You and your spouse have lived apart for at least three years.
  • Your spouse has been in a mental institution for at least three years and it appears that recovery is unlikely.

4. How does Texas determine the division of property?

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You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you.The court will divide your property in whatever way it decides is fair. It considers property that you or your spouse acquired during your marriage to be community property and eligible for division, regardless of whose name is on the title. This includes:

  • Property that you or your spouse acquired while living in another state if it would have been community property had you been living in Texas at the time.
  • Property that you received in exchange for property that would have been community property had you been living in Texas at the time that you acquired it.

The court does not divide your separate property. In Texas this is:

  • Property that you acquired before you were married.
  • Property that you acquired by gift or inheritance.
  • Money you received for personal injuries during your marriage (unless it was for loss of earnings that would have been community property).
  • Property that you received in exchange for your separate property.
  • Property that you acquired in another state that would have been your separate property if you had been living in Texas at the time that you acquired it.
  • Property that you received in exchange for property that would have been your separate property if you had been living in Texas at the time that you acquired it.

The court also will not divide any income and earnings from you or your spouse’s property, wages, salaries or other compensation during your marriage that you and your spouse confirm is separate property in a written agreement.

The court will weigh you and your spouse’s rights to your assets in pensions, retirement plans, stock options, insurance policies and the like.

The court also will take into account the tax situations you and your spouse would face in dividing your property.

5. Does Texas require mediation before a divorce is granted?

Mediation is not always required, but the court may order it in your case. In particular, the court may order mediation if you and your spouse disagree over child custody or visitation (unless there is evidence of domestic violence).

6. How does the state determine child custody?

Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — ”where a child goes to school, what faith he or she is raised in and other biggies.Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.

The court seeks whatever arrangement offers your child frequent contact with both parents, if that’s in your child’s best interest, and provides a safe, stable environment.

Texas describes legal custody as conservatorship, and visitation is described as possession and access. The court may choose one of you to be sole managing conservator or make you and your spouse joint managing conservators and determine the terms of your possession of and access to your child.

You and your spouse may submit a parenting plan describing conservatorship and possession of your child and identifying ways to modify the plan. If the court finds your plan to be in your child’s best interest, it will be approved. If not, the court may require you to submit a revised plan. If that still isn’t appropriate, the court may order its own parenting plan.

If you and your spouse submit a plan for joint conservatorship, your plan must:

  • Identify which of you will choose your child’s primary residence and outline the area in which you and your child can live, or specifies that the conservator can choose a primary residence without geographic limitations.
  • Specify you and your spouse’s rights and duties for the physical care, support and education of your child.
  • Include ways to minimize interruptions to your child’s daily routines, education and friendships.
  • Show how all other parental responsibilities will be divided or shared by you and your spouse.
  • Be made voluntarily by you and your spouse.
  • Be in your child’s best interest.

If you and your spouse cannot agree on conservatorship or possession, the court may order you to seek arbitration, mediation or collaborative law, in which you and your spouse and your attorneys agree in writing to try to resolve your disagreements without resorting to court intervention.

If it’s left up to the court to decide, the court will weigh joint conservatorship according to the following factors:

  • Whether it would benefit your child’s physical, psychological and emotional needs.
  • You and your spouse’s abilities to give your child’s welfare top priority.
  • Whether each of you can encourage a positive relationship between your child and the other parent.
  • Whether both you and your spouse participated in raising your child before you filed for divorce.
  • How close you and your spouse will live to each other.
  • Any other factor the court considers relevant.

In considering possession of your child, Texas has outlined a very specific set of guidelines for dates and times that constitute the standard possession order. It adheres to that schedule as closely as possible. If your child is younger than 3, the court may adjust the times as appropriate. The schedule may differ, too, if you and your spouse live more than 100 miles from each other.

Your child may have a say in where he or she lives, if your child is 12 or older.

Other factors that the court may consider in ordering living arrangements different from standard possession:

  • Your child’s age, development, circumstances, needs and best interest.
  • You and your spouse’s circumstances.
  • Any other factors that might be relevant.

7. How does the state calculate child support?

The court encourages you and your spouse to come up with a written agreement addressing support and how it will be modified, if necessary.If the court finds your agreement to be in your child’s best interest, it will approve the agreement. If the court does not approve your agreement, it may require you to submit a revised agreement, or it may order support on its own.

Texas uses a chart based on the paying spouse’s net monthly income and the number of children you have. The court presumes that the amount resulting from the chart below is appropriate.

Based on the monthly net resources of the paying spouse:

  • 1 child: 20 percent of net resources
  • 2 children: 25 percent of net resources
  • 3 children: 30 percent of net resources
  • 4 children: 35 percent of net resources
  • 5 children: 40 percent of net resources
  • 6+ children: Not less than the amount for five children

The parent paying support may receive a credit for any child support he or she pays for other children. Medical support will be added on to the support amount resulting from the chart.

To be sure the support order is fair, the court also will take into consideration these factors:

  • Your child’s age and needs.
  • You and your spouse’s abilities to support your child.
  • Any financial resources available to support your child.
  • Your schedule of possession and access to your child.
  • The resources available to the parent who is receiving child support, including his or her earning potential and income from property or assets.
  • Any work-related child care expenses.
  • Whether you or your spouse has the managing conservatorship or physical custody of another child.
  • Whether you or your spouse is currently paying or receiving alimony.
  • College expenses for any of your children.
  • Whether you or your spouse has a company-provided car, housing or other benefits.
  • What other items are deducted from you and your spouse’s incomes.
  • Your arrangement for health care insurance and uninsured health care expenses.
  • Any special or extraordinary expenses for education, health care or other necessities for you, your spouse or your child.
  • The cost of travel for possession of your child.
  • Cash flow from any property or assets, including businesses or investments.
  • You and your spouse’s debts, if any.
  • Anything else relevant to your child’s best interest, taking into account you and your spouse’s circumstances.

8. How does the state determine and calculate alimony?

Alimony is not a standard part of a divorce case. In fact, in Texas, the eligibility is rather narrow. You only can seek alimony if one of the following situations applies:

  • Your spouse was convicted of a criminal offense involving family violence within two years of filing or while your divorce case is pending.
  • You and your spouse were married for more than 10 years, you don’t have adequate resources to meet your minimum needs, and you can’t support yourself because of a physical or mental disability, you are the custodian of your child who has a physical or mental disability, or you clearly lack earning ability in the labor market to meet your minimum needs.

If the court finds that you are eligible for alimony, also known as maintenance, it will weigh these factors in determining how much and for how long:

  • Your financial resources, including the separate and community property you were awarded in your divorce.
  • Your ability to meet your needs independently.
  • You and your spouse’s education and employment skills.
  • How long it would take you to get the education or training necessary to support yourself and whether it’s feasible.
  • How long you were married.
  • Your age, employment history and earning ability.
  • Your physical and emotional condition.
  • Your spouse’s ability to meet his or her own personal needs and pay child support while paying alimony to you.
  • Any actions by you or your spouse to destroy, hide or dispose of your community property.
  • You and your spouse’s financial resources, including medical, retirement, insurance and other benefits.
  • You and your spouse’s separate property.
  • Any contribution by one of you to the education, training or increased earning power of the other.
  • The property you or your spouse brought to your marriage.
  • Any contributions by you or your spouse as a homemaker.
  • Your misconduct during your marriage, if any.
  • Your willingness to go to employment counseling.

In fact, to award alimony, the court requires that you have tried to find a job or develop the skills necessary to become self-supporting (unless you or your child has a physical or mental disability that prevents this).

The court will not order alimony beyond three years and will limit it to the shortest possible period in which you can find a job or develop the skills to support yourself. The court will not order alimony greater than $2,500 monthly or 20 percent of your spouse’s average monthly gross income, whichever is less.

Alimony ends upon the death of you or your spouse or upon your remarriage. The court also may discontinue alimony if you are living with someone on a long-term basis.

9. Is there a waiting period before remarriage in Texas?

Yes. In Texas, you cannot remarry until at least 31 days after your divorce is final, unless you can show the court a good reason why it should waive the requirement.

FOR MORE INFORMATION:

The Texas state statutes can be found online here.

The state’s child support division is here.

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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