Julie Gray is a Texas-licensed attorney. This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.
The subject of divorce isn’t often discussed openly because many people prefer to keep marriage issues private. But divorce is incredibly common, no marriage is perfect and you deserve to have all the facts before considering the process.
If you live in Texas, a few unique laws set divorce proceedings there apart from proceedings in other states. Below, we’ll answer some of the most common questions about divorcing in Texas to help you learn the ropes and determine your next steps. We know this process can feel confusing and overwhelming, and we’re here to help mitigate that.
How do I know when it’s time to get divorced?
While every person and marriage is different, a few universal signs may indicate it’s time to file for divorce.
The most recognizable and dramatic indicator is ongoing, unresolvable fighting between spouses. If you have tried and failed to find peace with your spouse, it might be time to consider divorce.
Keep in mind, often divorce happens not because of intense fighting but because of circumstances. You may have gradually realized that you and your spouse don’t share the same goals for your respective futures. For example, maybe one wants to have children while the other doesn’t. Or perhaps one wants to move across the country while the other is happy where they are.
Whatever the situation, be kind to yourself as you think through this decision. Let your commitment to your long-term happiness be your guiding principle.
What are the residency requirements to file for divorce in Texas?
Before filing for divorce in Texas, you must have been living in the state for six months and in the county where you’re filing for at least 90 days.
What if my spouse wants a divorce even though I don’t?
Either spouse is legally allowed to file for divorce at any time.
If you don’t want to divorce or don’t agree to the terms laid out by your spouse, the ensuing divorce is considered “contested”. In the event of a contested divorce, we highly recommend that each party hires their own attorney.
To finalize a contested divorce in Texas, your spouse must schedule a final hearing and provide at least 45 days’ notice. Failing to respond to a divorce action can lead to a judgment by default, so it is important to be aware of all deadlines.
What is a “no-fault” divorce and is Texas a “no-fault” divorce state?
In a “no-fault” divorce, neither spouse has to be deemed “at fault” for the divorce to be finalized. Texas recognizes both fault and no-fault divorces.
What are the grounds for divorce in Texas?
There are many grounds for divorce in Texas. Some are very specific, while others are more broad:
- Insupportability: The marriage has become tumultuous, without any clear path to resolution. In this instance, the court may grant a divorce without regard to fault.
- Cruelty: When one spouse treats the other with cruelty, which prevents them from being able to live together. The term “cruelty” is left intentionally vague because it’s meant to be broadly applicable, since no two circumstances are exactly the same. Many behaviors may be considered cruel.
- Adultery: Extramarital affairs committed by either spouse.
- Conviction of felony: If one spouse has been convicted of a felony or has been imprisoned for more than a year and hasn’t been pardoned.
- Abandonment: If one spouse has been away for one full year or if one spouse left the other and made it clear they’re not coming back.
- Living apart: If spouses have been living apart from each other for at least three years.
- Confinement in a mental hospital: If one spouse has been living in a mental hospital for more than three years, or if their diagnosis is such that they’ll probably not recover or will only recover temporarily.
Are there separation requirements in Texas?
There are no separation requirements in Texas. It’s one of the few states that does not recognize legal separation.
How long will it take to get divorced in Texas?
The average range for a divorce in Texas is six months to one year, but many factors determine how long it takes to get divorced in Texas.
For starters, if your divorce is uncontested (meaning that you and your spouse have reached an agreement about the terms), it can be finalized relatively quickly. On the other hand, if your divorce is contested, it will take more time.
What is the waiting period for a divorce in Texas?
In Texas, there is a 60-day waiting period before a divorce can be finalized. Limited exceptions to the 60-day waiting period exist, most of which concern violence against a family member or member of the household. In such instances, a court may waive the 60-day rule.
When is a contested divorce considered final in Texas?
Barring exception, your divorce is considered final once a decree reflecting the court’s final orders is signed by the judge. The final decree of divorce sets forth the terms of the divorce, including any custody or support orders that may apply.
Final orders may be issued at the conclusion of trial or after the parties reach a settlement, in which case no trial will occur.
What role does my attorney play?
Among other things, a licensed attorney may act on your behalf to draft, file and serve pleadings, as well as represent you at appearances in court and any mediation that may occur.
Texas law also provides for limited scope representation. Here, an attorney will assist with specific services within your case, as opposed to handling all aspects of the case.
Can my attorney represent both me and my spouse?
No. You need to have separate legal representation.
Are Texas divorces public record?
In general, divorces in Texas are a matter of public record.
What is the average cost for divorce in Texas?
The cost of divorce in Texas varies based on a number of factors, including whether the parties agree to the divorce action itself, if there are children involved and the property, both real and personal, at issue.
Mediation is an alternative which may save the parties time and money, if agreement is possible.
Another option is Marble, which offers cost-effective legal representation. You only pay for the services you need, and there’s a fixed price for each service. That means you know up front what you need to pay—there are no hidden or surprise charges. And you get not only an attorney but an entire team working for you and helping you reach your goals.
Marble also offers a fixed price for representation at mediation. If you decide to go that route, you still need to pay for the cost of the mediator.
What does it mean that Texas is a “community property state”?
Texas is one of a handful of community property states. In these states, each spouse may claim up to 50 percent of properties or assets acquired during their marriage.
Any income or property acquired before marriage is considered separate and privately owned by the earner or purchaser.
How does a judge divide up our property?
During the final stage of divorce, the judge signs a final decree of divorce that divides community property between you and your spouse. The decree lists which spouse keeps which pieces of property. It also lists all separate property (meaning property acquired before marriage) owned by each spouse.
How is debt divided in a divorce?
Debt is also divided between spouses by the final decree of divorce, which is determined by the judge.
Who gets to keep the house in a Texas divorce?
Your divorce decree will contain provisions regarding distribution of the assets acquired during your marriage—that is, anything that’s considered community property—and assign each to one or both of you. Your divorce decree doesn’t include division of property that you or your spouse purchased before your marriage, otherwise known as separate property.
While a number of factors go into determining who will keep the house, a lawyer can help you obtain a result that is fair, which may include being awarded the house or compensated for your equity in it.
Who gets to keep the pets in a Texas divorce?
In Texas, pets are considered property and treated as such. Courts don’t issue custody orders for pets, though the decree may include provisions by which the parties will assume possession as with any other property asset addressed in the divorce.
What happens to my 401(k) and IRA plans if I get divorced in Texas?
Since Texas is a community property state, your retirement funds are subject to division between you and your spouse. If you’re worried that your spouse will attempt to claim more than the amount to which they are entitled, or if you intend to claim an uneven distribution, as you may with community assets, you likely want to hire a lawyer.
What happens to the family business in a divorce?
As with most things in a community property state like Texas, if you started a family business with your spouse, it’s considered community property. So it’s either split, awarded to you or awarded to your spouse by the judge in your divorce decree. This is another situation where a lawyer can help.
Whether or not you have sole proprietorship, if your business was established during your marriage and you live in a community property state such as Texas, it’s in the hands of the judge responsible for your divorce decree. It can be helpful to hire a lawyer to argue your case and protect your business.
Does Texas have alimony?
Texas doesn’t have alimony. In some instances, spousal maintenance may be awarded.
How is eligibility for spousal support determined?
You or your spouse may be eligible for spousal support depending on a number of factors, including duration of the marriage, the ability of a spouse to support oneself, and/or agreement.
How is spousal support calculated?
While there is no way to know precisely how much spousal support will be awarded, in Texas, the maximum amount a court may order is either $5,000 monthly or 20 percent of the supporting spouse’s gross monthly income, whichever is less.
How does the court determine the duration of spousal support?
If a spouse is unable to earn enough to cover their basic needs, or if they’re disabled or caring for a disabled child, a judge could rule that spousal support should remain in effect for as long as necessary.
Some other factors that determine the duration of spousal support include:
- If one spouse is awarded spousal support because the other was convicted or received deferred adjudication for a family violence offense within two years of filing the divorce, the spousal support may end after five years.
- If the marriage lasted for more than 10 but less than 20 years, spousal support may end after five years.
- If the marriage lasted for more than 20 years but not 30 years, spousal support may end after seven years.
- If the marriage lasted for 30 years or more, spousal support may end after 10 years.
Do I stop receiving spousal support if I get married?
Yes, spousal support is terminated if you remarry.
When should a spousal support agreement be modified?
Spousal support should be modified in the event of a “material and substantial change in circumstances” that significantly affects the initial circumstances considered by the judge when the divorce decree was originally created and signed off.
For example, the spouse receiving support gets a promotion and doesn’t need as much money from their ex. In that situation, one spouse (presumably the one paying spousal support) would file a motion to modify the spousal support agreement.
Is there any way to receive financial support during the divorce?
In Texas, you can file for temporary spousal support during a divorce. However, judges only award this if they determine such support is necessary and fair. Also, you must prove that you need this help in order to pay necessary expenses and that your spouse has the means to pay the support. The temporary spousal support lasts for a set period of time.
Can I still get medical insurance benefits from my spouse’s employer after a divorce?
Through COBRA, you may be able to continue receiving health insurance coverage. Your lawyer can help explain what limitations will apply.
What are the types of child custody in Texas?
In Texas, child custody is defined both by conservatorship, which involves decision-making on behalf of the child, and possession and access.
- Sole managing conservator: When one parent or individual is granted sole decision-making power over the child in question. This role can be assigned to someone other than the child’s biological parents.
- Possessory conservator: This term refers to the parent(s) who isn’t chosen as sole managing conservator. In situations where the sole managing conservator role is given to someone other than the parents, both parents are considered possessory conservators. They retain the right to parent but have no final say in major decisions made on their child’s behalf.
- Joint managing conservators: Both parents share the decision-making power over their child. Often one parent is named the “custodial parent” (or the parent with primary custody), which means they decide where their child lives. In other cases, neither parent is named the “custodial parent” and the judge decides which school zone or county the child must live within.
What factors does the court consider for custody agreements?
For custody agreements, the court considers the following:
- Any history of violence between you and the other parent and any history of child abuse in your household
- What your child wants and their future mental and physical needs
- Each parent’s specific capabilities for parenting
- The stability of the newly proposed home
- Any programs that might help you or the other parent address your child’s needs
- Your plans for your child, should you win the modification case
- Any events that might suggest that one parent is not fit to have primary custody of their child and any relevant excuses for those events
On average, who is more likely to get custody—the mother or the father?
Statistically, mothers are much more likely than fathers to receive custody of their children. A poll conducted by the United States Census concluded that only 17.5 percent of custodial parents are fathers.
Do children have a say in child custody decisions?
Children aged 12 and older can tell the court with which parent they prefer to live, and the court may consider these wishes but isn’t bound by them. The child’s desire is only one factor on which the court can rely in making its determination.
How do you modify a child custody agreement in Texas?
Before starting the process to modify a child custody agreement in Texas, you typically must wait a year from the date that the judge made their final decision about custody, or a year from the date that you and your ex-spouse signed a settlement agreement through mediation. There are a few exceptions to this rule:
- If both parents agree to the modification.
- If your child is in a dangerous situation with the other parent.
- If the custodial parent has given your child to someone else for more than six months. (This is not applicable to custodial parents on active military duty.)
You must have proof that one of the exceptions listed above is true and list that proof in a declaration form made under the penalty of perjury.
If you’re outside the first-year window, you can file a modification case. To win, you must show that changing the order is in your child’s best interest. You may show this when:
- Both parents agree to the modification.
- Your child is 12 years or older and expresses in court that they would like to live with the other parent.
- The custodial parent has given your child to someone else for more than six months.
- The circumstances that affected the original court ordered custody agreement have changed materially and substantially.
How is child custody modified if a former spouse moves out of state?
If the divorce decree stipulates where a child should reside, relocation of a parent can necessitate the modification of a custody order.
Also, a parent moving out of state is sometimes considered a material and substantial change to the circumstances of the initial custody order. That means it can affect the custody agreement if a modification case is filed.
Talk to a divorce attorney
When entering uncharted waters, the most important thing is to bring a life jacket with you. That’s what an attorney can be during a divorce. They can help keep you safe and ensure you’re not alone.
Of course, lawyers are often expensive, but that’s where we come in. At Marble, we’re here to guide you through this difficult time without hitting you with surprise fees. We charge flat rates per service and offer payment plans so you can afford the help you need. Set up a free call with our legal team today.
