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Family Law

Divorce in Texas

No-fault divorce was introduced in Texas in 1970. The idea behind no-fault divorce was to avoid drawn-out legal battles and immoral tactics to prove or defend against allegations of misconduct such as cruelty, adultery and abandonment.

The no-fault system prevents one spouse from withholding consent to divorce as a means of extracting an unfair division of assets or child custody agreement and it helps prevent harassment.

That doesn’t mean that divorces cannot be granted on “at fault” causes.  These grounds do exists and often, the person initiating a divorce will file a petition based on fault grounds.  However, for a multitude of reasons, the majority of divorces granted in Texas will be because the marriage has become insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship (Texas’ version of irreconcilable differences).  

That said, just as marriage is not to be entered into lightly, neither should divorce.  Divorce is very stressful on all parties, especially on children.  Sometimes it is the only alternative, but sometimes a marriage and a family can be saved.  It is worthwhile to explore all options.  A good attorney will help you determine if you are at the point where you need to seek a divorce.  

Temporary Orders

The court may issue temporary orders to protect the parties involved. These generally will last until your divorce is settled. Temporary orders can provide alimony, access to children, access to your home, extension of medical benefits, or they can be used to prevent your spouse from running up debt on jointly held credit cards. Temporary orders provide financial support to a spouse who may need it until a divorce is finalized.

Temporary orders are also used to secure your access to the children or the home should your spouse try to use a restraining order to remove you from their life.

What’s required to get a divorce?
In Texas, one of the parties must be a state resident for at least 180 days, or 6 months. Second, you must have been a resident of the county in which you are filing in for a period of 90 days. The court will not grant a divorce until the property issues have been resolved. Furthermore, when there are children, custody and support issues for them will need to be determined.

The first step is filing the “Original Petition for Divorce.” Most counties have one or more courts that handle family law cases. After the Original Petition for Divorce has been processed, it must be delivered to your spouse. This is usually done by a Constable, a county sheriff, or a private process server.  However, if both parties are amicable and resigned to the divorce process, your spouse can sign a waiver of service.  

Mediation

Often, divorcing couples are required to attend mediation prior to their case going to trial. Final details of the divorce settlement and custody agreement can be settled here. A mediator is a disinterested third party that can help the parties communicate in a way that results in a settlement.  Sometimes the parties will be together in one room, but more often during mediation, a spouse and their attorney will be present in one room while the other spouse will be present with his or her attorney in another room. The mediator will go back and forth between spouses in an attempt to negotiate a settlement.

The mediation approach offers a variety of benefits:

  • It is less time consuming than litigation
  • It costs less than litigation
  • It allows couples to air grievances or concerns in a controlled environment.
  • It gives the parties greater control over their divorce settlement
  • It allows parties to reach unique solutions that fit the specific desires and needs of their family

Alimony

Courts may not award alimony in Texas. However, the Texas legislature has created statutory spousal maintenance or spousal support, effectively bypassing the no alimony laws.

Spousal maintenance is generally awarded to one spouse based on the duration of the marriage and on that spouse’s ability to provide for their own minimum reasonable needs. The court must limit the duration of spousal maintenance to the shortest reasonable period of time. Further, the court cannot order more than the lesser of $5,000 per month or 20 percent of the spouse’s average monthly income.

For divorces filed after September 1, 2011, the court can make an award of spousal maintenance for:

  • 5 years for spouses who were married less than 10 years
  • 7 years for spouses who were married for 20 – 30 years
  • 10 years for spouses who were married for 30 years or more

Division of Property

Texas is a community property state.

Community property means that most of the property acquired by the spouses during the marriage belongs to both spouses, regardless of who obtained the property. Debts are also owed by both spouses, regardless of who incurred the debt. Community Property is subject to division in the event of a divorce.

Property owned prior to the marriage, along with gifts and inheritances received during the marriage, are separate property and do not have to be divided with your spouse.

Community property may be divided equally. However, the judge has the ability to weigh factors specific to your case and order division that is not equal.

If a Judge decides to order an unequal division, that decision will be based on a number of factors, these factors include things such as fault in the divorce and whether one of the parties was a stay at home parent.  

Common Questions:

Do we have to divide up real property during a divorce?

It depends.

If a spouse owns real property prior to marriage, or acquires during the marriage by gift, devise, or descent, that real property will not be divided during the divorce because it is separate property. Furthermore, if the funds used to purchase the real property during the marriage were entirely separate property, the purchased property is separate property and separate property is not divided.

Property purchased during the marriage jointly or by either spouse is presumptively community property. If community property was used to purchase the real property, that property will be divided among the spouses during a divorce. The property will be divided because each spouse has a one-half (1/2) interest in the part of the real property which is considered to be community.

This doesn’t necessarily mean that real property must be sold.  Sometimes, there is enough personal community property that the real property can be awarded to one spouse and the difference can be made up by awarding more personal property to the other spouse.  

Am I entitled to any of my spouse’s business when we divorce?

It depends.

If your spouse started their business or purchased it while y’all were married, the business is a martial asset and it is presumed to be community property. If your spouse’s business is entirely community property, you have an equal one-half (1/2) interest in that business. In that case, the business would be part of the community property to be considered and divided by the court. If your spouse started their business or purchased it before the marriage, the business could be separate property. If it is separate property, the business will not be part of the community property and will not be considered and divided by the court.

That being said, any income earned during the marriage by your spouse through their business is community property. You have an equal one-half (1/2) interest in all of the community property income earned from your spouse’s business during the marriage and it is to be considered and divided by the court.

This area of the law can be quite complicated as not only must you consider when the business was established, but also what type of business entity it is, whether the spouse involved in the business was properly compensated, and other complex financial issues.

How can I ensure I get the house in the divorce?

The house often goes to the spouse who is awarded primary custody of the children. The court will want to provide the children as much stability as possible. However, if no kids are involved, the court may look to see which spouse can afford the house. Don’t forget that if you get the house, you are getting the debt associated with the house as well. Not to mention you will have to budget for maintenance, repairs and property taxes. When taking an honest look at your situation, it may not be worth it to keep the house. The court may order the house sold and the parties will split the proceeds if the prospect of owning the house is too much for either party.

Child Custody

In Texas, both parents will remain involved in their children’s lives following divorce. Texas, in its own fashion, does not use the term “custody” but “conservatorship”.  But to ease understanding, we’ll just refer to it as custody.

Generally, one parent will have the right to determine the children’s primary residence, and the child will most likely spend the majority of the time with that parent. The other parent will usually be required to pay child support.

A multitude of factors are used when determining which parent and which household will become the primary residence. The parent who has been the primary caregiver for most of the children’s lives will have an advantage when determining who is to obtain primary residential custody.

The visitation schedule will usually be different if the parents live far apart. Parents can also negotiate a customized schedule to fit their jobs or their children’s needs.

In Texas, both parents will be named as joint managing conservators, meaning that they will share medical, educational and religious decisions concerning their child. Only in rare instances is one parent named sole managing conservator.  This usually occurs in cases where substance abuse, criminal activity or family violence is at issue.

Child custody can be modified if there is a significant change in the circumstances of the parents or children.

Common Questions:

Can my ex move out of state with our child even with joint custody?

Maybe.

A parent should request a geographic restriction to be imposed upon the other child in the original action. If this is addressed in the initial negotiation or litigation of the divorce, it is much more difficult for a parent to move the child or children after a geographic restriction is requested than it is if the discussion were omitted. These cases can be very drawn out and complex.  Before hiring an attorney, you should talk to him about his experience in this area.

My spouse left our home and children, do they still have the right to see our children?

Yes. The spouse is still the parent to the child or children despite their leaving the home and therefore has the right to see his or her children. However, if the leaving spouse is a danger to the children, a spouse may seek to obtain a protective order, restraining order or temporary orders.

These protections will be awarded based on the degree of danger presented by the spouse the protections are sought against.

How long will I be paying child support?
In Texas, a parent will have to pay child support until the child turns 18 or until the child graduates from high school at the end of the school year, whichever occurs later.  However, if the child is mentally or physically impaired, the court may order that child support needs to be paid past the age of 18 and for an indefinite period of time.

My spouse has stopped paying court-ordered child support. What do I do?
Contact the family law attorney that initially assisted you in the divorce. An enforcement action may be necessary in order to find your ex-husband and start receiving child support again. If the court has ordered your ex-husband to pay child support, he is responsible for paying it. It doesn’t matter if he moves or gets remarried.

My ex-spouse just got a higher paying job. Can get more support money from them?
If the earnings of a divorced parent who is paying child support has changed, a modification to the court order may be necessary. Generally you’ll need to prove that circumstances have changed dramatically since the court orders were finalized. Modifications to your original court-ordered child support may be in order if your ex-spouse receives a promotion or higher paying job.

A substantial increase in the parent’s ability to pay and the needs of the child or children in question are generally the factors looked to when discussing modification of a child support agreement.